India is not quite yet a Hindu Rashtra: 70th Constitution Day

by Aurobindo Ghose

In January 2018, four top Supreme Court Judges in a surprise move, held a press conference declaring that “Democracy is at stake, and we have a debt to the nation”. Justice Ranjan Gogoi, as he then was, had also remarked that “independent judges and noisy journalists are democracy’s first line of defence”. Three of these judges have retired as judges, over a year ago. The fourth became the Chief Justice of India (CJI) on October 3, 2018. On the evening of November 25, 2018, in an unprecedented move, the Prime Minister, Narendra Modi, had tea with the CJI at his Court room number 1, within the Supreme Court. The CJI quickly reconstituted the five-judge bench hearing the Ayodhya case, proceeded to hear it on a day-to-day basis and pronounced an un-signed judgment on November 9, 2019 just a week before demitting office. The CJI also led the Benches which dismissed the challenges to the Rafael deal, the executive’s interference in the highest echelons of the CBI, ensured the completion of the arbitrary and discriminatory NRC exercise in Assam within a set time-frame and upturned the earlier majority Sabarimala judgment allow-ing younger Hindu women to enter the Kerala temple, by permitting review of the verdict by a bigger bench. In the process he compromised the independence of the judiciary and lowered the dignity and prestige of the highest Court. After the Ayodhya verdict, what can we now say about the future of our democracy?

The demolition on August 10, 2019, of the Sant Ravidas Temple—a symbol of Dalit faith in North India—for land encroachment, on directions of the Supreme Court was a brazen and clear violation of the freedom of religion as laid down by the Constitution of India. The same Supreme Court on November 9, 2019 directed the Central Government, on grounds of faith and not fact, to construct the Ram temple at Ayodhya at the site of the demolished Babri Masjid, even after holding that the placing of the idol Ram Lalla in 1949 inside the mosque was illegal and its demolition in December 1992 was an “egregious violation of the rule of law”.

A careful reading of the 1045-page long judgment brings out the deep inconsistency between what is professed and what is practised. The judgment talks about the equality of religion and equality before the law as enshrined in the Constitution, but has clearly leaned on the side of the majority. As the BBC reported, loud chants of “Jai Shree Ram”("Hail Lord Rama") and “Mandir Wahin Banayenge” (“We shall construct the temple at the very spot where Lord Rama was born”) rent the air in the precincts of the Supreme Court, as the Ayodhya verdict was being read out.

While holding that “the dispute is over immoveable property” and “the court does not decide title on the basis of faith or belief but on the basis of evidence”, the Court ultimately decided the title dispute in favour of the majoritarian forces and against the minority, contrary to all available evidence. The Court also ruled that a) ASI found the Masjid was built above a structure but it could not be said to be a temple; b) the Masjid was not built after demolishing a temple; c) the placement of the deity Ram Lalla inside the Masjid in 1949 was illegal; and d) the demolition of the Babri Masjid in 1992 was a clear violation of the rule of law. The Court has nevertheless awarded the ownership of the disputed site to a juristic person, baby Ram Lalla, on the ground of continued line of worship at the outer and inner courtyard and directed the Central Government to form a Trust to construct the Ram Temple. There is no evidence before the Court that a historical person called Ram ever existed, that Lord Rama was born there or that a Ram Mandir ever existed on the site.

Even while paying lip-service to the premise that “at the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law”, the judgement has denied the aggrieved party, the Sunni Wakf Board, its claim to the site after its palpably visible dispossession, because of its inability to provide evidence of continued possession. The Court has also held that there is no evidence that Muslims have abandoned the inner courtyard. The judgment is indeed a classic case of a “bundle of contradictions”, as by yet another somersault, the Court has decided to provide the Sunni Wakf Board a suitable 5-acre land in Ayodhya away from the disputed site for construction of a Mosque. This appears to be a case of compensation or rather reparation for the act of desecration in 1949 and demolition of the Babri mosque on December 6, 1992.

The judgment is replete with errors apparent on the face of the record. The biggest error is that the Ayodhya ‘judgment’ is unsigned, which under Order XX Rule 2 of the Civil Procedure Code, 1908 makes it non est or no judgment whatsoever in the eyes of law. Even the Addendum to the judgment as to whether the disputed structure is actually the birth place of Lord Rama, is unsigned and the name of its author undisclosed. Yet another basic or structural error apparent on the face of the record, is that even while swearing by the Constitution, the judgment violates the secular character of the Constitution as reflected in its very Preamble by identifying the parties as ‘Hindu’ or ‘Muslim’. The judgment also assigns to the Central Government the pivotal role of construction of the Ram temple which the State is prohibited from doing under a secular Constitution.

The judgment also violates the rule of equality before the law by using the legal procedures and rules of evidence in a discriminatory manner. The rule of evidence followed in deciding the title of Baby Ram Lalla over the disputed site is the “preponderance of probabilities”, which is a rule more subjective than objective. However, the evidence demanded from the Waqf Board was the proof of continued physical possession which is more objective, even though the Bench admittedly never doubted the existence of the mosque and continuance of Namaz.

Even on the law of limitation, the judgment clearly discriminates. The suit of Nirmohi Akhara, a Hindu religious denomination, was dismissed on the grounds that it is not a juristic person and the suit was time barred. On the other hand, Ram Lalla was illegally placed inside the mosque in 1949 and the suit was instituted in 1989 beyond the 30-year period of limitation. The judgment does not clarify this issue except to say that the suit on behalf of Ram Lalla is maintainable. It may be because Ram Lalla as a figurative character is depicted as a Baby or minor and there is no limitation for a minor. However, no method of determination of the age of a stone idol, considered as a juristic person, is available in the jurispru-dential literature.

The question then arises: Did the Supreme Court through its Ayodhya verdict, by implication, unwittingly declare India as a majoritarian, theocratic State? Is this a Hindu Rashtra? Is this the culmination of the movement for Hindutva defined as Hindu Rashtra since the early 1920s, with personalities like Hedgewar, Savarkar and Golwalkar as its leading figures, and particularly since the formation in Nagpur in September 1925, of the voluntary body of the Hindutva forces, the Rashtriya Swayamsevak Sangh, or the RSS in short? My simple answer is: not yet, in the face of an emergent counter-force of a bold, vibrant, vigilant rainbow-like civil society in defence of secularism, human rights and democracy.

The Sunni Wakf Board and the All India Muslim Personal Law Board (AIMPLB) were quick to reject the offer of the Ayodhya Bench of five-acres of alternative land for construction of a new mosque, because Hanafi law does not allow it. The AIMPLB has also decided to file a Review petition, but the Chairman of the National Commission for Minorities has cautioned against such a move. The verdict was immediately followed by the formation in Chennai of a forty-body strong “anti-fascist coalition” to oppose it. Recently, the Deoband-based umbrella body “United against Hate” organised a joint protest against disappear-ances, mob-lynching and the killing of rationalists. Every day there are protests by democratic forces in different parts of the country, for example, JNU students valiantly carry on their fight against unchecked hostel fee hike; various organisations have come together to oppose the NRC (National Register of Citizens) in Assam, West Bengal and other States. Women, Dalits (particularly followers of Sant Ravidas), tribals, forest dwellers, OBCs, farmers, trade unions and intellectuals are organising protests on a continuous basis, against the anti-people policies of the government.

Under these circumstances, with a growing civil society determined not to submit to the repressive, communal and divisive policies of the government, it is well-nigh impossible for a Hindu Rashtra or a fascist state to take over this beautiful, "unity in diversity", secular, democratic country called India.

(Courtesy: subrangindia.in)

The author is an advocate, Supreme Court of India and can be contacted at g_aurobindo[at]yahoo.com