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Mainstream, Vol XLVIII, No 43, October 16, 2010

High Court Verdict on the Babri Mosque: Implications for the Rule of Law

Tuesday 19 October 2010, by Arshi Khan

In his commentary on the Greek Political Thought, C.L. Wayper says: if the king is virtuous, law becomes unnecessary; if the king is not virtuous, law becomes useless. In today’s terms, it can be referred to as the endorsement of the Rule of Law and Constitutionalism which are the backbones of democratic governance particularly in a plural society like India. The Rule of Law was considered inevitable for the unity and integrity of the country by thwarting the menace of ‘preferred interests’ of different communities for avoiding conflicts and controversies. Supremacy of the Rule of Law is a decisive factor in legitimising democratic governance. It is a fact that the biased and partisan role of the enforcement agencies institutionalised the culture of hatred, violence, riots and discrimination on the one hand and the rise of fascist-terrorist forces on the other.

It was in this context that the framers of the Constitution of the Republic of India, 1950 played the role of trustees in underlining certain principles which were later declared by the Supreme Court as the Basic Features of the Constitution. Such measures by the framers of the Constitution and the Supreme Court were primarily meant for providing guidelines to the political actors, parties and the policy-makers to keep the country united and integrated by its own internal sources and means. This Nehru-Gandhian project of building a Federal India was based on creating the confidence of the people consisting of different communities on the structure of power and developing a political culture conducive to ‘civic democracy’ and not ‘ethnic democracy’. This paradigm was considered as the most pragmatic, consensual, and long-term national project for ‘state-building’ in which not only the political parties but also the government agencies from top to bottom were supposed to endorse the primacy of the Rule of Law over their allegiances and affiliations. The purpose of the political leadership soon after independence in August 1947 was to transform India into an Asian model of democracy for managing a big ‘cultural-ethnic museum’ by balancing the ‘common law system’ with the ‘civic law system’ on the one hand, and to make India a voice of conscience at the international level on the other.

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Over the years the rise of the fascist forces at the State and the Central levels, particularly since the late 1980s, perverted the political culture of the country resulting in amateurishness, ignorance, stasis, internal conflicts and a decline in India’s international image. India is no more a voice of protest or conscience against occupation, war crimes, exploitation, humanitarian inter-ventions and proliferation. It was a power of conscience and the non-Western world was looking up to India as its future leader. Today, India is known for taking lessons from Israel and conforming to the United States both of which have committed a series of crimes after the end of the Cold War. At the domestic level, our social unity is fractured by party politics which leads to hatred, caste violence, communal riots, discriminations, unrests in many areas alongside the increasing occurrence of bomb blasts/terrorism.

Fascist parties and organisations have strengthened themselves over and above the ‘Sovereign State’ and thus downplayed the constitutional principles for their own interests. I would call the period beginning with late 1980s as the beginning of the most dangerous phase of transition in India resulting in a U-turn of India’s foreign policy in international politics simultaneous with the anti-democratic ingredients in domestic politics. Despite the formation of coalition governments, institutions and processes of governance at various levels, including intelligence and media kiosks, are getting highly infected with the fascist forces. This can be perceived by their unchecked rise and assertion and the Central and State governments have been maintaining silence of innocence over them.

It is mandatory in the European Union framework to ban such political organisations which resort to acts of violence, inciting for violence, promoting hatred and becoming a menace to the constitutional order. They misused the package of democratic liberties for advancing their own vicious agenda of violence, hatred and communal divide and accordingly influenced various structures of power. Their activists and products have entered into the multiple layers of government agencies which can be easily seen in the role of several political actors, police, paramilitary forces, intelligence agencies and administration. Moreover, certain sections of the judiciary are not immune from their influences. This is a big challenge to India’s democracy which is always based on the Rule of Law and its denial by the fascists’ sentiments and policies enhances the risks to the nation’s democratic ethos.

Democracy also requires the judiciary to be vigilant, rational, assertive, impartial and independent of any kind of influence so that citizens could get justice according to the laws. Judiciary is an institutional watch-tower above the key institutions and political actors. The judiciary’s role becomes more important in plural societies where minorities fear majoritarian dominance or its undue influence in public sphere. Here, I am trying to look at the role of the judiciary at the High Court level, particularly in the context of the recent judgment on the status of the demolished Babri mosque in Ayodhya in the State of Uttar Pradesh which has long-term repercussions for democracy. In general. Muslims—the largest minority community of the country—are shocked over the nature and content of the judgment as they never expected the judiciary at this level to be so ignorant of the basic principles of justice and legitimacy as per the terms of the Constitution and legal conventions.

The two-one majority judgment of the Special Full Bench of the Allahabad High Court on September 30 on the status of the demolished site of the Babri mosque is going to decide the future of India’s political culture. The Court accepted the disputed site as the birthplace of Shri Ram Lalla, maintained silence over the politics and terror of the Sangh Parivar led Ram Janambhoomi movement (for declaring the mosque as the birthplace of Ram Lalla); there were no criticisms or objections over the act and the way the demolition was organised in violation of the Supreme Court instructions in December 1992. It also took the extra-legal decision to totally surrender the main disputed site (where the mosque stood) to the Sangh plaintiff while giving the outer portion to the Nirmohi Akhara and the land area in its vicinity to the Muslim Waqf Board, one-third portion to each party.

I am not looking into this judgment or the Babri mosque as a Hindu-Muslim conflict but a dispute created by the fascists and not by the Hindu community which is known for its tolerance, accommodation, and tradition. The fascists claim to represent the Hindu community as its protector but their identification with Hinduism, culture and security of the community are politically motivated to replace Mahatma Gandhi as the Father of Nation who was a firm believer in Hinduism but stood against the Hindutva ideology (militant nationalism based on the misuse of the sentiments of the Hindu masses against the Muslims resulting in acts of terror, violence and hatred). It is the Hindutva ideology which began to translate its goals and interests into concrete courses of action based on hatred, violence and inter-community tensions.

The Court gave the verdict on the Babri mosque (1528-1992) which was demolished illegally by the fascist forces represented by the Hindutva ideology. Muslims prayed in it till it was locked by the district administration after the illegal installation of the idols within the main prayer area in December 1949. Despite the promises of the Central leadership, Muslims were not allowed to practise their religious freedom and they finally knocked the doors of the judiciary. The mosque was opened in 1986 by the order of the district level judiciary allowing Hindus to worship the illegally placed idols; this was also endorsed by the Congress party in power. Muslims, represented by the Sunni Waqf Board, appealed to the High Court in the State of Uttar Pradesh which decided the case on September 30. The questions before the Court were related to the nature of the make-shift temple/mosque, status of the disputed site, status of the make-shift temple over the place where three domes existed and the birthplace of Ram worshipped by many Hindus. The fascists made their claims that this place was the birthplace of Ram and the mosque was built after demolishing the temple. They also pledged to build a grand temple after destroying the mosque.

It is important to recall that such a demand was made by the Hindutva forces and not by the Hindu community. They made it a political issue and ran a concerted propaganda campaign to mobilise the community through all means. So the issue was not a dispute between the two communities but between the Hindu fascists and the Muslim community. The fascists, who terrorised Muslims all over the country and the Christians too over conversion, have no regard for the Indian Constitution. When Muslims proposed to get the dispute settled by the law courts these fascists turned down the proposal thus blocking both the channels of the Rule of Law and negotiated reconciliatory process. In fact the fascists wanted to show their might and supremacy over the Rule of Law which they did during the anti-Muslim hate campaigns and demolition all over India during 1989-92. Finally they thought to impress the majority community by their promises, policies and actions in contravention of the basic principles of the Constitution.

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It is implied in the verdict that the Court finally accepted the sanctity of the idols placed in 1949, demolition of the mosque in 1992, the demolished site as the birthplace of Ram and the right of the plaintiff over the Babri mosque. It made only one difference with what the Hindutva forces were saying: that one-third of the mosque area be divided into three parts, and the insignificant part be given to the Waqf. Soon after the verdict, legal luminaries called the verdict a political decision and guided theology rather than law. Famous historians lamented upon it as the Court denied the historical and archaeological facts related to its determination. Arundhati Roy and supporters of civil liberties expressed shock over the verdict while the Muslims became speechless over it as they never expected the judiciary going to the extent of a grand denial of their rights included in Chapter Three of the Constitution, considered as one of its ‘Basic Features’. The Congress party resorted to the ‘dual morality’ approach by appreciating the judgment and at the same time condemning the act of demolition.

On the other hand, the fascist elements in the country—mainly the second largest political party, the Bharatiya Janata Party (BJP), its mother organisation, the Rashtriya Swayamsevak Sangh (RSS), and its other wings—have commended the verdict as a seminal one that has raised the image of the country and helped to build unity of the people. Uma Bharti, one of the hate-mongers against the Muslims and the one who was giving highly emotionally charged speeches before the mosque-demolishers (respectfully called kar sevaks) on December 6, 1992, described September 30 as the happiest day of her life. Similarly L.K. Advani, the former President of the BJP, who was known for having vitiated the atmosphere of Hindu-Muslim unity by embarking on a 10,000 km-long Rath Yatra (slow-speed driven chariot-looking vehicle) in 1990, called the judgment as the most important contribution to national integration. To him, the judgment vindicatd the Ram Janmabhoomi movement. In other words, the Court issued a clearance certificate to those who were instrumental in polarising the whole Indian society along religious lines to build the Ram temple after demolishing the Babri mosque.

However, the Sangh Parivar is not fully satisfied over the verdict mainly due to the one-third land given to the Muslims. They have already signalled against any such division or transfer of the land. RSS-backed sadhus have rejected the course of reconciliation. I do not agree with certain formulations made over this verdict such as the victory of the Hindus, affirmation of faith based on theological consideration, etc. To me, there is no Hindu-Muslim conflict in the country as both the communities respect each other supported by countless evidences. The politics of the ‘birthplace and the Ram temple’ is the agenda of the fascists who can survive only on the basis of creating and expanding conflicts between the two major communities of the country. So it is basically the emotional exploitation of the community by the fascists representing themselves as new nation-builders.

It is important to recall that the same forces were instrumental in the politics of partition (1925-47), assassination of Mahatma Gandhi (1948), placement of idols in the Babri mosque (1949), engineering over 22,000 anti-Muslim violence (generally called communal riots till 2005), anti-Muslim hate campaigns and reign of terror in the Hindi speaking regions (since 1989), demolition attempts (1989-92), demolition of the mosque (1992), genocide of Muslims in Gujarat (2002) and branding Muslims as terrorists and anti-nationals by organising bomb explosions
in different places (2002-09). They had also criticised the Maharashtra Anti-Terrorist
Squad chief, Hemant Karkare, for exposing the involvement of the fascists in several bomb-blast cases. They also met Ms Pragya Singh Thakur, one of the accused in masterminding the bomb blasts. They further protested against the Union Home Minister as well over his remarks on ‘saffron terrorism’. These forces are certainly encouraged by the verdict which is a dangerous signal for nation-building in the country.

Theological considerations have no consensus on the issue of the real place of birth of Ram that is projected more by psychological operations. The verdict is neither a victory of the Hindus nor the country but it is a triumph of the fascists as their claims have been finally endorsed to a large extent. It has been unthinkable for either a Muslim or a Hindu to make claim over each other’s place of worship. Both the communities have long before practised the harmonisation packages of living together as a symbol of their civilisational cohabitation. Moreover, the partition of the country in 1947 was not the result of Hindu-Muslim hostility but the failure of the leadership, more on the part of the Congress party.

It is also a fact that both the communities do not consider each other as enemies but two different groups living together for centuries who have shared the pains and pleasures on all occasions. It is the fascist elements in the country which have been vitiating the harmonious nest of existence. In Islam, as the Holy Quran clearly underlines, all human beings belong to Adam and Eve. So all Hindus and Muslims belong to the same Creator and the Lord. Sir Syed Ahmad Khan had rightly considered them as the two beautiful eyes of a bride. They shared a common destiny in the freedom struggle and lived together despite the tragic partition.

The Constitution of India of 1950 has under-lined the basic guiding principles for governance of the country but they have been violated by the fascist forces since long. The Muslims, largely recognised as a socially, educationally and economically backward community, have also been the victims of discrimination in employment, promotion, habitation and empowerment. Frequent riots, illegal detentions, fake encounters etc. have already shaken their confidence in the police, administration and other civic authorities. This Court judgment has larger implications so far as their confidence in the higher judiciary is concerned. Above all, the verdict does indicate the primacy of the Hindutva claims over the Rule of Law which should not be confused with the primacy of faith. It now depends upon the Supreme Court to oversee and examine the matters afresh to restore the letter and spirit of the Constitution.

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The long awaited verdict seems to have accepted, verified and endorsed most of the unlawful claims of the militant-nationalist forces in the country, including the demand that the place where the make-shift temple exists is the real birthplace of Ram. This is quite evident from the views expressed by the provocateurs.

It is important to recall that these forces in collaboration with their political party in power in the State of Uttar Pradesh and its enforcement agencies encouraged the kar sevaks (Hindu brigands) to take law into their hands and demolished the mosque on December 6, 1992— that too in the presence of heavy security forces and the Supreme Court representative to monitor and report on any violation of the undertaking given by the fascist Vishwa Hindu Parishad (VHP) not to demolish the mosque but to perform ceremonial puja (worship). The Court divided the property of the Sunni Waqf Board (Babri mosque area) into three pieces with the transfer of the two parts with the site of the three demolished domes/inner circle and adjacent areas to the Hindu claimants and the third one to the SWB.

The verdict may be recorded as the most tragic decision which finally endorsed the stand of the Hindutva fascist forces in India. The judicial verdict justified the unlawful claims of those terror elements in the country which are known to have been inciting and engineering hatred, violence and genocide against the Muslim community. The High Court judges accepted the illegal acts of the chauvinists who planted the Ram idols in the Babri mosque in 1949 resulting in its closure and denial of the basic religious rights of the Muslims to pray over there. Before the surreptitious planting of the idols inside the mosque, various generations of the Muslim community prayed there for 500 years.

The post-1949 developments need to be placed rationally based on analogical observation methods. This period signified the rise of the militant fascist Rashtriya Swayamsevak Sangh (RSS) which, after assassinating Father of the Nation Mahatma Gandhi, was engaged in an anti-Muslim drive all over the country. It wanted to take over the leadership of the country but due to the stewardship of Pandit Jawaharlal Nehru and his dislike for the RSS it was kept under check. Nehru called the RSS an anti-national force which was also banned. Since 1949, various peaceful attempts were made by the Muslims to exercise their right to practise their religion in the mosque by approaching the Prime Minister, Chief Minister, District Adminis-tration and the judiciary but none proved to be genuinely interested in the protection and upholding of their fundamental rights.

It must be noted that Muslims kept on waiting for the judicial pronouncement for restoring their religious freedom in the context of the Babri mosque. The RSS focused on two major objectives—to keep on terrorising the Muslims in various parts of the country by engineering anti-Muslim terror (popularly called ‘communal riots’) and to continue with the policy of its infiltration into the structures of power at the local, State and national levels. The RSS’ political aspirations were translated into reality with the formation of the Bharatiya Janata Party (BJP, erstwhile Bhartiya Jana Sangh) in 1980. Soon its fascist religious outfit—Vishwa Hindu Parishad (VHP)—was established and this began to claim the Babri mosque as the birthplace of Ram.

Dr Arshi Khan is an Associate Professor, Department of Political Science, Aligarh Muslim University, Aligarh.

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