Tuesday, Dec 05, 2023

Ganesh Festival At Idgah Maidan Flies In The Face Of India’s Constitutional Secularism


Ganesh Festival At Idgah Maidan Flies In The Face Of India’s Constitutional Secularism

Why was it so important for the Karnataka government to hold Ganesh Chaturthi puja in an Idgah maidan somewhere in the state? Was it something to do with the fact that assembly elections are around the corner?

A land entranced: Police deployment at the Chamarajpet Idgah maidan in Bangalore Photo: PTI

The Karnataka government’s efforts to conduct Ganesh Chaturthi puja—first at the Idgah in Bangalore and then in Hubballi—fly in the face of India’s constitutional secularism.

The Bangalore Idgah case is part of an emerging pattern in India when the State drops all pretence of constitutional propriety and com­es out of the closet as nothing more than a majoritarian political ideology in power. The right of Muslims over the Idgah in Bangalore’s Cha­m­arajpet had been contested by the Bangalore Municipal Corporation (BMC) and had been consistently upheld in favour of the Muslims in three previous rounds of litigation, and had att­ained finality in the eyes of the law. But the und­erlying presumption on which the rule of law ope­rates is that the rules of the game will be followed by everyone—citizens, governments, pu­b­lic authorities and judges alike. Increasi­ngly, this pre­su­mption is too much to ask for.

In 1951, the BMC started work laying the fou­ndation of a school building on the land forming part of the Idgah. A repr­­e­sentative suit was filed on behalf of Muslims seeking to permane­ntly restrain the BMC from int­erfering with their possession over the Idgah. This case travelled up to the Supreme Court and was decided in 1964 by a detailed judgm­ent, in which the court held that Muslims had been in uninterrupted possession of the Idgah since at least 1871, as per written records before the court. The BMC had contended that the land had acq­uired the status of a public playg­round since children of all communities pla­yed there, but this argument was rejected by the court, saying that keeping child­ren out of one’s property cannot be made a precondition to successfully defend one’s own­ership over it.

This was followed by a notification in 1965 by the Karnataka Waqf Board declaring 299 properties in Bangalore as waqf (inalienable charitable endowments under Islamic law) under the Waqf Act, 1954. The BMC challenged the inclusion of 39 of these properties before the high court in 1968, contending that these had been wro­ngly included in the list, but did not challenge the inc­lusion of the Idgah, indicating it had conc­e­ded that this land was a waqf. The state government was also a party to these proceedi­ngs. The high court dismissed the writ petition, saying that declaration of a property as waqf had to be challenged by filing a civil suit and not by a writ petition. The BMC never filed such a suit in res­pect of the Idgah in the 57 years since the waqf notification.

In 1975, the BMC again attempted to encroach upon the Idgah land, this time on the pretext of wanting to build a road through it. Muslims filed another civil suit against the BMC for an injunction restraining it from interfering with their possession of the Idgah. Once again, the suit was decreed in favour of the Muslims. The appellate court also dismissed BMC’s appeal, holding that it had conceded that the land was waqf land by not challenging the notification of this land as waqf and by leaving it out of its challenge in the 1968 writ petition. The court also noted some instances where the BMC had served notices on the mutawalli (administrator) of the Idgah, in which it ack­nowledged the status of the land as waqf.

Should a State government created to uphold a secular Constitution offer to conduct poojas through ‘government-­controlled temples’?

This position continued till 2022, when certain Hindu outfits demanded that they be allowed to use the Idgah for their religious festivals. The BMC, now known as the Bruhat Bengaluru Mahanagara Palike (BBMP), claimed that the ground was actually appearing in their records as a public playground, an argument already rejected by the Supreme Court. Nevertheless, the government iss­ued a showcause notice to the Waqf Board, asking it to furnish title deeds of the land. The Waqf Board produ­ced the 1965 notification and all court orders to establish their ownership and possession.

Despite this, the joint commissioner of the revenue department passed an order saying that the Waqf Board had been unable to produce title deeds, and since the land was without an owner, it vested in the government. This is contrary to all known principles of law, since title deeds of land held for centuries are often not available, and ownership is decided on other factors such as uninterrupted possession.

The Waqf Board was forced to challenge this order before the high court. A single judge admitted the petition and pas­sed an interim order on August 25, stating that during the pendency of the litigation, the land could not be used for any purpose other than Eid prayers twice a year. But the order also permitted Independence Day and Republic Day celebrat­ions in the Idgah by the state government, which, strictly spe­aking, contravenes the concept of private ownership. Iro­n­i­­cally, it was not the Waqf Board but the state governm­ent that filed an overnight appeal against this order before a division bench of the high court, and had it listed the same day by mentioning that there was a need to have the case heard immediately.

The division bench passed an order in which, after fleetingly mentioning ideals like brotherhood, diversity and religious tolerance, the court, without any further reasoning, modified the single judge’s interim order to permit the state government, “in the peculiar facts of the case”, to allow use of the land for holding religious and cultural act­ivities. This was on a Friday. Over the weekend, the state government apparently received several applications seeking use of the land for Ganesh Chaturthi puja so that by the time the appeal was mentioned on Monday and listed on Tuesday before the Supreme Court, the state government came to court armed with its own orders all­o­wing the Ganesh puja in the Idgah land.

The appeal before the Supreme Court was a dramatic one, full of twists and turns. After a long hearing, the bench could not arrive at a consensus and the matter was referred to the CJI for the constitution of a larger bench. Since the puja was scheduled for the next day, a three-judge bench was constituted the same day. Some of the arguments made by the government that were widely reported in the media were notable for their lack of veneer. In response to a question as to whether Ganesh puja had ever been held in the Idgah in the last 200 years, the response of the government was that it hadn’t, but that was no reason it should not be allowed now. When asked if there was shortage of other spaces around the area where Ganesh puja could be held, the government candidly replied that there was no shortage of space, but there was no reason why it should not be held in the Idgah. As a last-ditch effort, the state government’s counsel even suggested that the puja be held by a ‘government-managed temple’ allowing entry only by government invitation, with the government taking full responsibility for sec­urity in the area. As if the government isn’t otherwise responsible for security! This ben­ch allowed the appeal and restored the inte­rim order of the single judge.

The files had barely been taken out of the court that evening when the local civic body in Karnataka’s Hubballi district passed an order allowing Ganesh Chaturthi puja to be held in the Hubballi Idgah. A single judge of the Dharwad bench of the Karnataka high hourt in a midnight hearing, refused to stay the order. And so, next morning, delivering on the promises made from political platforms, Ganesh puja was held at least at one Idgah maidan in Karnataka.

Why was it so important for the state government to hold Gan­esh Chaturthi puja in an Idgah maidan somewhere in Kar­nataka that day? Should a state government created to uphold a Constitution that has secularism embedded as a part of its bas­ic structure be offering to conduct Ganesh pujas through ‘government-managed temples’? Is ‘why not’ the correct question to ask when faced with a choice of holding a religious function of one community in the property of another by force of legal san­ction? If there is no shortage of space, then why specifically an Idgah? Was it something to do with the fact that assembly elections are around the corner and it’s that time when the government is little more than a political party having an unfair adv­antage in the elections? The answer my friends, is blowing in the wind.

(This appeared in the print edition as "Strong Arm Of The Law")

(Views expressed are personal)

Nizam Pasha is a delhi-based lawyer