Wooing The Law

Ever since Arun Jaitley's return to the Union law ministry, there has been a buzz in Sangh parivar circles about how he will use his legal skill to "solve" the Ayodhya dispute. The plan works something like this: the Supreme Court will accept the Centre's application filed last week seeking to vacate the order passed last year which reaffirmed the ban on all religious activity on the 67 acres of "undisputed" land in Ayodhya. The apex court will then speedily set up a bench that will reinterpret its own 1994 judgement that originally imposed the ban. Once this minor miracle has been performed, the government will pass an executive order handing over part of the land to the VHP-controlled Ram Janmabhoomi Nyas. Presumably, this is the point at which the VHP's sants and sadhus will dance with joy.

Most legal experts, however, say it would be like trying to pull a rabbit out of a hat, something which may be beyond even Jaitley's legal genius. Says senior lawyer Ram Jethmalani, "The courts have shown remarkable consistency on religious disputes and I doubt if Jaitley can pull it off and get the courts to revise their earlier judgements." Adds senior counsel Rajeev Dhawan, who had successfully argued for maintaining the status quo in both 1994 and 2002, "It cannot happen but should the court go back on its 1994 judgement, it would have disastrous consequences not just on the Ayodhya dispute but on the secular ideals enshrined in the Constitution, of which the courts are the guardians."

Why then, in a virtual repeat of last year, has the Centre again knocked on the court's doors? And why did Prime Minister A.B. Vajpayee and a clutch of ministers meet the Kanchi Shankaracharya when he tried to revive his formula offered last year that the so-called undisputed land be given to the Nyas? Particularly as the Shankaracharya himself told Outlook that "nothing can happen till the court verdict is revised"? Says Syed Shahabuddin, member of the All India Muslim Personal Law Board (AIMPLB), also a party to the case, "I believe the PM is primarily trying to meet a crisis situation with the VHP again threatening to take the law into its own hands."

On the very day the Centre moved its application, VHP leader Praveen Togadia warned of a "final agitation" if the land was not handed over by February 23, "when the 10,000 sadhus gathered at the dharam sansad in Delhi will take a harsh decision". The PM also deputed HRD minister Murali Manohar Joshi to talk to VHP president Ashok Singhal. RSS and BJP leaders say that emboldened by Gujarat, the VHP is in the mood to push its agenda, which Togadia threatens is "the final declaration that India is a Hindu rashtra". VHP leader Giriraj Kishore even expressed doubts over the Centre's sincerity, suspecting that the court application is just a diversionary tactic.

But was the VHP acting as an unguided missile or is it part of a planned strategy? Senior RSS sources say that the increased VHP pressure also makes it easier for the Vajpayee regime to espouse the so-called Hindu causes. While the Congress remains in a funk, VHP-Modi and now Vajpayee represent the two ends of the ideological pole. BJP sources say both will push for a Hindutva agenda for the forthcoming assembly and national polls. Convinced that its allies have become toothless tigers, there is even talk in political circles—though denied by the BJP—that the party may bring a bill in the monsoon session to transfer the Ayodhya land to the Nyas. For the record, NDA allies did register token protest. The TDP's Yerran Naidu said they'd oppose the latest moves on the floor of the House. Samata Party spokesperson Shambhu Srivastava warned of "serious repercussions".

And across the board, allies and opponents asked why the government is again trying to shift its burden to the apex court, particularly when the title case dealing with the Ayodhya dispute—being heard by a special bench at Lucknow—is in its final stages; a verdict may be expected in a year and a half. Says Zafaryab Jilani, who is arguing on behalf of the minority community at Lucknow, "There is no legal reason for this sudden move. The Muslim side has produced all its witnesses. The Hindus have produced half of them. Soon the arguments will begin and the verdict given." He adds, "This political build-up seems like an effort to pressurise the courts. Create such a hue and cry that the courts feel under threat if they give a verdict that does not please the VHP. It is because of the fear of losing the case that the VHP has consistently taken the line that it will not approach the courts to settle something that is a matter of faith."

Which is why the government has to do the VHP's work in the courts—a move bound to attract flak. In all fairness to the Centre, it has merely asked for the lifting of the stay on the Ayodhya land and not argued for temple construction. As former Lok Sabha secretary-general Subhash Kashyap argues, "The question is whether for the sake of law and order the land can be given back to its original owner, the Ram Janmabhoomi Nyas. The law does not look at the face of the owner, whether it is a Muslim or a Hindu. Now it's up to the courts to accept or reject this plea." Former solicitor-general Harish Salve points out that there is a small portion in the 1994 judgement requiring clarification that says the undisputed land may at some point be given back to its original owner. But Congressman and senior lawyer Kapil Sibal reads from the judgement to stress that this can only happen after the title deed is decided. And though the government has not argued for temple construction, it is trying to facilitate it.

Which is what enrages most members of the legal fraternity. Jethmalani calls it "nothing more than a diversionary political tactic". Dhawan thinks "the law ministry is trying to misuse its authority to give the land to the highest bidder, in this case the VHP". Supreme Court advocate Prashant Bhushan points out, "It is against every secular principle of the Constitution that the government wants to give land for the construction of a temple which is sought to be built after demolishing a mosque. The Constitution clearly lays down that the government must not promote any religion."

Worried and insecure in the age of Moditva, the Muslim community is in no mood to provide any provocation or appear combative, even if the VHP is waging a virtual war on minorities and has openly said it will take the law into its own hands. There is no talk of rebuilding the mosque. All they say is, let the special court give its verdict. As Shahabuddin puts it, "We will respect any verdict. That's all we are asking."

Trapped into the prolonged mandir-masjid dispute, the Muslims still retain a touching faith in the law of the land. Says Kamal Farooqi, member of the AIMPLB, "We are not worried about the latest move because we know it has no legal merit." Qasim Rasul Ilyas, convenor of the Babri Masjid Committee of the law board, points out that "the courts have till now gone by the law and the spirit of the Constitution".

Given this, Sibal believes Jaitley is on a hat-trick: "He was wrong about the petrol pump allocation and the presidential reference on Gujarat. And this case could be his nemesis." The Constitution of the Indian Republic does appear the biggest hurdle in the parivar's plans.