Ayodhya Verdict: Commentaries II
Romila Thapar in the Hindu:
The verdict is a political judgment and reflects a decision which could as well have been taken by the state years ago. Its focus is on the possession of land and the building a new temple to replace the destroyed mosque. The problem was entangled in contemporary politics involving religious identities but also claimed to be based on historical evidence. This latter aspect has been invoked but subsequently set aside in the judgment.
The court has declared that a particular spot is where a divine or semi-divine person was born and where a new temple is to be built to commemorate the birth. This is in response to an appeal by Hindu faith and belief. Given the absence of evidence in support of the claim, such a verdict is not what one expects from a court of law. Hindus deeply revere Rama as a deity but can this support a legal decision on claims to a birth-place, possession of land and the deliberate destruction of a major historical monument to assist in acquiring the land?
She goes on to express fears about this setting alegal precedent:
...The verdict has created a precedent in the court of law that land can be claimed by declaring it to be the birthplace of a divine or semi-divine being worshipped by a group that defines itself as a community. There will now be many such janmasthans wherever appropriate property can be found or a required dispute manufactured. Since the deliberate destruction of historical monuments has not been condemned what is to stop people from continuing to destroy others? The legislation of 1993 against changing the status of places of worship has been, as we have seen in recent years, quite ineffective.
There is no such fear, says Ashok Malik in the Pioneer:
Why was the Ayodhya case singular? When he delivers a judgement, a judge is conscious he is setting a precedent. He may be triggering the process of what is called case law, which could determine future judgements in subsequent, unrelated cases. There was no such burden on the three judges of the Allahabad High Court. The Places of Worship (Special Provisions) Act of 1991 prohibits any change in the “religious character of any place of worship as it existed on the 15th day of August, 1947”. The only exception it makes is for the Ayodhya site, which was already the subject of a court case when the law was enacted.
As such, and despite the fear-mongering and doomsday scenarios of professional secular fundamentalists, there is no danger of the Ayodhya judgement being used to change the ownership or denominational identity of any other religious structure, be it in Varanasi or Mathura or elsewhere. The judges were conscious of this. They realised they were opening no floodgates and setting off no wave of me-too litigation. They knew this was a one-off, that the Ayodhya verdict represented a once and forever challenge. This allowed them to tweak the boundaries of jurisprudence.
At Law and Other Things blog, Aditya Sondhi, an advocate and law teacher in Bangalore, had this first reaction:
As a lawyer, it is intriguing that suits claiming declaratory reliefs of title have been disposed of more akin to a partition suit where all contesting parties end up with a share in the property that is the subject matter of litigation. But that is precisely the acute judicial balance that the Court has struck in dealing with a vexed dispute that entailed mixed questions of mythology, history, faith and law.
Extraordinary facts make for extraordinary law. Rather than recognize the absolute right of any community over the land, the Court has been able to lucidly declare the common but disparate interest of each group based on their co-existent practice of worship at the site. It is almost as if that ‘easementary’ right has been elevated to one of ownership. While this may not be commonplace in civil law, a case of this nature inherently requires Courts to evolve supple principles of law to deliver real justice. To my mind, the judgement reinforces one’s belief that law and religion are a heady mix and can determine standards that are credible and conclusive. Indeed, the Sunni Wakf Board may feel aggrieved (as might the other plaintiffs) by the outcome, and, undoubtedly, even if the judgement is affirmed by the Supreme Court in challenge, the execution of the decree to cause ‘partition’ in metes and bounds is certainly going to be inflammatory and extremely complex. Nevertheless, the decision vindicates the position of those who chose to have the matter resolved by a Court rather than by a mob.
Of course, Courts do not decide matters that are purely religious or that are not disputes of a “civil nature” under Indian civil law, but equally, such judgements prove that the Indian legal system is able to confront and resolve volatile religious disputes without fear or favour. This ensures the supremacy of law and not that of men. But for this judgement, the Ayodhya dispute would have necessarily resulted in an extra-legal solution, as was attempted in 1992. The political class was all along, as Ram Guha said, “pusillanimous” in coming up with a workable solution, either by way of reconciliation or by legislation.
At Kafila, Nivedita Menon has an impassioned piece :
Technicality? Legality? The judgement is utterly cavalier and selective about when it will emphasize legalities and technicalities, and when it will ignore them. When one argument seems a little weak, other, quite contradictory ones are added on, just to be on the safe side. Like a liar who says, sorry I couldn’t do what I promised to do, because I was flat out with dengue, and also I was busy looking after my old mother who fractured her foot, and then it started raining heavily so the roads were flooded.
“Faith” is enough to ground a judgement in a modern court of law, but also, the ASI report shows that a temple was demolished to build the mosque, and also the Sunni Waqf Board is unable to prove its rights conclusively.
M.J. Akbar in the Sunday Guardian:
"...the Allahabad judgement is a semi-colon, not a full stop. The full stop will come when the Supreme Court takes a decision. Muslims will appeal, as they have every right to. It must also be stressed that in 1993 Parliament clearly prevented the courts from hearing any other dispute over a place of worship. Ayodhya is the last case of its kind.
He also correctly, in my view, points out how important it is for the legal process to be completed:
The Congress, which has been in power during all four of the nodal points of the Babri-Ayodhya controversy — opening of British Raj locks and installation of idols in 1949, laying of the foundation stone for a temple in 1989, destruction of Babri in 1992 and the verdict in 2010 — is in search of an “amicable” settlement. The game is old and evident. Congress policy on the dispute has rotated around one axis: how to get the temple built without losing the Muslim vote. The BJP has no Muslim vote to lose, but it will support such an under-the-surface endeavour since it obviously wants a temple to be constructed as soon as possible. If Ayodhya is the last case of its kind perhaps we should let it complete the legal process as well. We have waited for six decades; why not wait for two or three years more? Any “amicable” settlement is unlikely to be amicable enough for everyone, to begin with and could degenerate into a “political” compromise that could strain community relations rather than heal them. If we trust our institutions then we must trust them fully.
Vir Sanghvi in HT:
I disapproved of the Ayodhya movement. I understood Muslim concerns and fears. But I still felt that if the Babri Masjid Action Committee or some other Muslim body would show some flexibility and make a grand conciliatory gesture, it would strengthen Indian secularism and finish off the Ayodhya movement before it poisoned the atmosphere and damaged India.
Now that the judgement is in and the court has forced a compromise on both sides, I can’t help wondering: could a better deal have been struck two decades ago when the Masjid was still standing?
If only both sides had shown a little magnanimity and a degree of flexibility in the 1980s, lives would have been saved and India would have been spared a terrible and entirely unnecessary trauma.
Vir Sanghvi in the New Indian Express:
When I see the utter lack of interest displayed by most Hindus in the Ayodhya judgment, I wonder sometimes if the battle between two competing visions of Indian secularism has not finally been settled. The verdict allows for the construction of a mandir at Ayodhya but I do not hear Advani and other BJP leaders rejoicing that they can finally build that grand temple which was once so crucial to their vision.The BJP has abandoned the overtly Hindu ideology which once defined it. Even Narendra Modi — regarded as a Hindu fascist by his secular opponents — rarely talks about Hinduism these days, preferring to focus on development and his attempts to bring prosperity to Gujarat. Nobody mentions wanting to change the basic character of India or complains about the injustices done to Hindus by our Constitutional secularism.In the long run, it might count as no more than a foot-note to history but the measured response to the Ayodhya verdict marks something quite fundamental and significant. It marks the acceptance of the demise of a certain kind of political Hinduism that once sought to transform the very character of India and its secularism. Is it any wonder that we rarely hear the word Hindutva any longer? Like the Ayodhya movement, it is a concept that is past its sell-by date.
Shekhar Gupta notes the positives in the Indian Express:
... the fact that this class that came up with the most articulate criticism of the judgment seemed overwhelmingly inclined towards the Muslim argument, in spite of having been (at least) born Hindu, spoke well for our society and the system. So here is my first takeaway from this September 30. When all else fails, politics, social dialogue, intellectual and philosophical argument lean on the system of institutions. But for that you have to build great institutions and also tolerate what you might sometimes see as their excesses.
...L.K. Advani spoke to my colleague, Indian Express Senior Editor Vandita Mishra, expressing satisfaction with the court order but underlining that it did not justify the Babri demolition. Now, if you are a student of contemporary politics, think hard. This is a clearer denunciation and disowning of the crime of 1992 by a top BJP leader than you have heard of the Emergency of 1975 by a top Congress leader. There have been “regrets” expressed, but only about its “excesses”. Only a fortnight ago, Advani had told Vandita and Saubhik Chakrabarti (Eye, September 19) that had he known the consequences that followed in either case, he would not have gone to Ayodhya while he would certainly have visited Pakistan.
Barkha Dutt noted in the Hindustan Times:
But, should the party have been so quick in using the verdict to talk about a “grand mandir” at Ayodhya? If, as the party argued, the Allahabad High Court had paved the way for national reconciliation, then could the BJP not have shown a little more magnanimity of response? For instance, L.K. Advani, whilst talking about a Ram Mandir, could have also been more specific in welcoming the building of an adjacent mosque. Both Justice Khan and Justice Agarwal have underlined the “very unique” historic tradition of Hindus and Muslims offering prayers alongside at the site before the 1857 mutiny. The BJP could have focused more than they did on this syncretic history of India’s religious edifice.
Dilip Padgaonkar in the Times of India:
The biggest infirmity of Thursday's verdict, therefore, is that the court treated Lord Ram as a 'juristic person'. In the eyes of the law, a deity or an idol is thus entitled to be placed on par with flesh-and-blood litigants. The sheer brazenness of this stand, which belittles the exalted stature of Hinduism's most revered divinity, makes you wince.
After this bit of 'creative' legal thinking, the other infirmities in the verdict appear to be no more than trifles. Take the issue of whether or not a mosque was built after demolishing a temple. From all accounts, the findings of the Archaeological Survey of India were incomplete at best and, at worst, misleading. At any rate, experts are divided on the subject. But that did not persuade the judges to exercise a bit of circumspection.
A day earlier, the same paper had pointed out:
in the Indian judicial system, deities have always been regarded as legal entities who could fight their case through the trustees or managing board in charge of the temple in which they are worshipped by devotees.
If Ram Lala fought his case in Lucknow, even Kashi Vishwanath of Varanasi had done so in the Supreme Court when the UP government enacted the Sri Kashi Vishwanath Temple Act, 1983 for better management of the ancient temple.
The Supreme Court, in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi, vs State of UP [1997 (4) SCC 606], recognised the right of a deity, though not for the first time, to move court and said, "Properties of endowment vest in the deity, Lord Sri Vishwanath."
It dismissed claim of the priests that they alone had the right to manage the temple on behalf of the deity and said management of the temple by mahant/pandas/archakas did not mean it became their property. It upheld the Act saying it was merely for better management of the temple.
Similarly, in Bihar State Board of Religious Trust vs Ramsubaran Das [1996 SCALE (2) 702], the SC had pointed to ancient revenue records attaching the temple land in the name of the deity. It had said, "That mahants dealt with the properties in their own names does not detract from the fact that the temples were public temples as they would well be said to be dealing with on behalf of the deities to whom the properties are dedicated."
J. Venkatesan in the Hindu agrees:
Legal experts are unanimous that a Hindu idol, as per the long established authority and founded upon religious customs of the Hindus, is a ‘juristic entity,' and it has ‘juridical status' with power of suing and be sued.
In 1983, Sri Adi Visheshwara of Kashi Vishwanath of Varanasi fought a legal battle in the Supreme Court when the Uttar Pradesh government enacted the Sri Kashi Vishwanath Temple Act, 1983, for better management of the ancient temple. The Supreme Court had ruled that a deity could move the court and said: “Properties of endowment vest in the deity Lord Sri Vishwanath.”
Besides the Supreme Court, various High Courts had also recognised the fact that a temple deity would be a legal entity and even a devotee or a regular worshipper could move the court on behalf of the presiding deity, which will be considered a perpetual minor
He also quotes Supreme Court lawyer Harshvir Pratap Sharma as saying:
“The Indian judicial system treats deities as legal entities who could have a legal representation in courts through trustees or an in-charge of the temple in which they are worshipped.”
...Order 32 of the Civil Procedure Code recognises a ‘sitting deity' as an individual. As the sitting deity is a perpetual minor and not time- barred, the Allahabad High Court admitted the suit filed on behalf of Ram Lalla and appointed the next friend to represent the Lord, and finally ruled in favour of the deity.
The ASI's controversial Report which claimed otherwise on the basis of ‘pillar bases' was manifestly fraudulent in its assertions since no pillars were found, and the alleged existence of ‘pillar bases' has been debated by archaeologists. It is now imperative that the site notebooks, artefacts and other material evidence relating to the ASI's excavation be made available for scrutiny by scholars, historians and archaeologists.
Abhinav Garg reports in the Times of India:
The ASI view that evidence pointed to the existence of a temple, forms the key material evidence relied upon by the court. Perhaps keeping in mind the criticism of ASI's findings, Justice Sudhir Agarwal and Justice D V Sharma in their comments have countered allegations of the report being influenced by powers that be.
They emphasized that the court controlled excavation was transparent. The charge that the finding of a huge structure preexisting the Babri Masjid, was "managed" has been addressed in detail. It had been alleged that the report was "biased and imagined" and failed to faithfully reproduce the actual findings.
But the judges have decisively recalled the facts of the case. While Justice Agarwal pointed out how representatives and lawyers of each party in the suit were permitted to shadow ASI officials during the actual excavations, Justice Sharma highlighted how "even Muslim members have also signed the report of ASI."
"The court has taken full care and issued specific directions to maintain transparency. Two judicial officers remained posted there. The excavation was conducted in the presence of the parties, lawyers and their nominees. Nobody can raise a finger about the propriety of the report on the ground of bias," Justice Sharma observed, rejecting pleas that the report be discarded.
The court said that the ASI report contains all the details including details of stratigraphy, artifacts, periodisation as well as details of structures and walls. The pillar bases mentioned in the report establishes beyond all doubt the existence of a huge structure.
In addition to above, existence of circular shrine, stone slabs in walls with Hindu motifs and more particularly sign of Makar Pranal in wall No. 5 (wall of disputed structure), divine couple and other temple materials, etc. conclusively proves the existence of a hindu religious structure, the judges have argued.
S Gurumurthy in the New Indian Expres
The first point to note was that the ASI was brought in by the court on its own in 2002, not by any party or the government. The ASI did the GPR survey and excavation under the orders of the court and under supervision by two judicial officers appointed by the court, in the presence of the counsel for the parties.
But the most disgusting part of this critical exercise, the importance of which to the case is brilliantly captured by Justice Agarwal (p3869-4333), was the way the Muslim parties attacked the ASI work in court, including on the ground that the BJP was ruling then, and that the ASI team did not include sufficient number of Muslims in the excavation work. This led to the court chiding them for suffixing experts with “Muslim”, “Hindu” or “Christian” (Justice Agarwal p230). But now, after the verdict, the secularists attack the court for relying on the ASI report in almost the same language the Muslim parties used to attack the ASI prior to the verdict!
A day earlier, in the same paper, he charged:
...the media did not highlight that the two judges have dismissed the suits of the Sunni Waqf Board and the Nirmohi Akhara (believed to be the proxy for the Congress party), and also that the two judges have decreed only the two suits filed by the Hindu parties. The consequence of this is immense, as will be unveiled in the next part of this article.
Manoj Mitta in the Times of India:
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 Times of India itself, Rajni Bakshi recalls philosopher Ramchandra Gandhi who visited the troubled site a year before the demolition of Babri masjid and found, posted above the main arch of the mosque, a sign that said "Janmasthan Sita ki Rasoi":
Outside the mosque's northern wall 'Ramu' Gandhi found a platform where a rolling board and rolling pin were being worshiped as deities. In those humble objects of daily life Ramu perceived powerful symbols of "generativeness" going back to our ancient aboriginal roots. Ramu concluded that the Ramkot mound in Ayodhya was, in ancient times, a sacred fertility grove. This shrine to mother earth or Divine Mother came to be known, in Puranic times, as Sita ki Rasoi and later represented by the board and rolling pin as symbols of nurturing love.
Aveek Sen in the Telegraph recounts his experience in Delhi on the day of the judgment:
Then, all of a sudden, as if from one of the minarets I had once climbed to the top of, emanated, into the expanse of the evening, a sombre, amplified voice that we soon realized was not the azaan. It was a call to the people who had gathered at the gate and inside — a call of the last solemnity — to react to the verdict with dignity and restraint, to not give in to disappointment or a sense of injustice and not be roused to untoward passions. Within the cadences of an almost ritual Urdu that I understood only in parts, I caught the words high court, supreme court and appeal. They sounded strangely incongruous, even absurd, as they floated out into the evening on the steady wings of an indescribable melancholy, which was somehow more musical to my ears than worded.
And, finally, a gossip column in the Telegraph notes:
The Ayodhya verdict seems to have split the Congress vertically. The status-quoists, led by the PM and Ahmad Patel, want the law to take its course till the Supreme Court takes the final call. The Gandhis, both Sonia and Rahul, are tight-lipped but are patiently listening to everyone who has something to say. Digvijay Singh, who has earned the tag, albela, ever since he described a senior minister as “Quick Gun Murugun” in private, wants the government to push for an out-of-court settlement. But his colleagues in the AICC secretariat — such as Janardhan Dwivedi and Motilal Vora — are equally keen that the party should not be seen to be delaying the construction of the Ram temple. Some Muslim MPs too want the controversy settled out of court, but they don’t believe that the Manmohan Singh government would take the plunge.
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