Friday, Sep 24, 2021

The Verdict: First Thoughts

The Verdict: First Thoughts
The Verdict: First Thoughts

The usual chaos and confusion reigned.

It was clear that would be the case  from the moment it was announced in the afternoon that the three judges would be giving individual judgements, and that the summaries of the judgments would be available on the Allahabad High Court website.

The site, predictably, crashed. It was only much later that the judgments were also offered on another site

More confusion was to follow, exactly as feared.

TV channels had various lawyers seemingly holding impropmptu press conferences. Among the conflicting claims, confusion and din, no one was sure what had been pronounced by whom.

And then, suddenly, all TV channels started reading out the "issues for briefing" from the "gist of judgment" of the dissenting judge, Justice Dharam Veer Sharma.

That this had such bald assertions as the following did not help:

"the disputed site is the birth place of Lord Ram. Place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as birth place of Lord Rama as a child. Spirit of divine ever remains present every where at all times for any one to invoke at any shape or form in accordance with his own aspirations and it can be shapeless and formless also."

That was not all. He went on to plainly assert:

"The disputed structure was constructed on the site of old structure after demolition of the same. The Archaeological Survey of India has proved that the structure was a massive Hindu religious structure".

It led to the assumption that this was the considered consensus verdict.

Not surprisingly, the initial response was one of shock.

What led to the confusion was that while the other two judges offered only one PDF file each for their respective  "gist of judgment", the one by Justice Dharam Veer Sharma was in two PDF files: Brief Summary and Issues for Briefing.

It perhaps helped that his 'Issues for Briefing'  were also six short, succinct and self-contained Q&As which made for easy reading out loud on TV for most who were desperate for some clarity about the three judgments.

With the official site having crashed, most had to make do with what they could access easily and what circulated around was Justice Dharam Veer Sharm's above 'Issues for Briefing' and not what seems to have been the intent of the other two judges -- to somehow effect a compromise -- however flawed in terms of law  and logic it might have been.

It got the back up of many people -- including those like Nai Duniya editor, Shahid Siddiqui.  It is not my case that the reactions would have been very different, but I think we would not have seen this much of an outrage and shock as we did in the beginning.

We do not need a conspiracy theory to explain the above. This is par for the course. Sheer incompetence and mishandling can explain most things in our public life.

It is not just hindsight which tells us that there should have been one spokesperson for the Court in this case who presented a clear, concise summary rather than the initial impression amongst many commentators that Justice Dharam Veer Sharma's 'Issues for Briefing' were a consensus verdict.

By the time information trickled in and most people realised that the other two judges had been -- at least relatively -- more nuanced, it was already inevitable that there would be an appeal to challenge Justice Dharam Veer Sharma's assertions.

I say this without having read the other two judgments in detail, and am relying mostly on the 'gist of judgments' , but my instinct tells me that it is this unfortunate sequence of events that immediately led to many being incredulous at what senior advocate Rajeev Dhawan called an "astonishing" judgment.

He was of course correct in reacting to the majority decision of dividing the land, which he called "Panchayati justice and trying to find a compromise solution", which, if that was the intent, was in any case thwarted by the sequence of events above. This also begs the question, if Panchayati justice is the best we could get under the circumstances, would it have been too much to expect of the judges to be more creative -- say, a much proposed non-religious site that could be of use to all the citizens of Ayodhya -- than merely partitioning the land? However, what the two judges went on to say -- at least going by the 'gist of judgments' -- should not exactly be a total surprise to most who have followed the controversy.

Without getting into the merits of the ASI evidence cited by the judges, people like Sanjay Subrahmanyam, for example, had always warned of the pitfalls of using the "no temple ever" argument in countering the challenge of Ayodhya. 

Leaving aside Justice Dharam Veer Sharma's assertions for a moment, it is only fair that the judgements of the other two judges will be dissected in the days to come.  Even if adjudicating on the events of December 6, 1992 was not the issue under consideration, it remajns an open question what the two judges would have held if the mosque had indeed not been demolished.  That,  being a given, and having been said (which in turn could lead to far many more counter-factual questions, equally relevant, about the 1990s, 1980s or 1940s, if not the 16th century itself) one needs to also, of course, note that there are many like senior advocate Shanti Bhushan who see not only a silver-lining but a sense of closure in today's judgment:

I welcome this judgement wholeheartedly. It will promote secularism in the country and harmony among all religious communities. Neither of the parties to the suits should challenge the verdict in the Supreme Court as they have been held joint owners of the disputed site. In my opinion, all parties to the disputes should accept the judgement and no one should file an appeal in the Supreme court ... The most beautiful part of the judgement is that it has provided a legal basis for holding that the parties are joint owners of the land. It would pave way for constructing a temple and a mosque.

Click here for more reactions

But with the Hindu Mahasabha and Sunni Wafq Board already having declared their intent to go in appeal to SC, that sense of closure is far from being realised in a hurry, particularly as those guilty of the 1992 demolitiion still roam around with impunity.  The only -- and it is not small -- silver lining to the whole brouhaha today was that at least so far, despite the sense of triumphalism and victimhood on display in some quarters, the reactions over all have been restrained, with appeals of peace and calm from most parties.


Post Script II: Adding a Twitter-exchange a little after the above blog-post -- read this from bottoms up, or to read it in chronological order, click here (and for more context: also here and here)


Post Script: The link for reactions has been updated with those from some of the prominent Muslim intellectuals quoted in today's TOI.

Incidentally, Shanti Bhushan's son Prashant Bhushan is quoted here as saying:

The high court’s decision was based mainly on people’s faith and what they believed, therefore negating the natural process of justice. It is an absurd judgment. No legal right can be declared on the basis of people’s faith. They (the three judges) have decided on all kinds of irrelevant and emotional issues. There is no legal basis to the ruling that the disputed land should be divided into three parts.


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