The Vishva Hindu Parishad (VHP) is at it again. So is the Rashtriya Sywamsevak Sangh (RSS).
With the Supreme Court putting away hearings on the Ayodhya dispute to an uncertain date, an ordinance chant has taken over. The political devotees of Lord Ram want his birthplace, his shrine, consecrated by legislation. They want it now.
“Hindus are running out of patience,” Giriraj Singh, a central minister, scowled ominously. “No one knows what may happen if they run out of patience”. Singh and his acolytes apparently believe the Supreme Court is dilly-dallying deliberately. They seemingly think a parliamentary legislation — or ordinance — is an elegant way out: seize the matter from the judges; consign the disputed land to Hindu sects; deny Muslims any claim to it; settle the weary dispute forever.
Should the Modi government oblige?
Legally speaking, can it oblige?
Fight past the fog of faith, devotion, politics and rage.
The Ayodhya controversy waiting there is a banal, private matter — one piece of land, many claimants. Who’s the rightful owner?
Courts have been at it, trying, stumbling at times, avoiding, for six decades now. Can Parliament simply grab the suit, and legislate away the dispute?
Parliament is India’s supreme lawmaker. 'Supremacy', though, is a misleading idea. While it may make laws at any time, Parliament can’t make laws on whatever topic it wishes. Constrains apply. Obviously, it can’t make laws that violate the Constitution.
To legislate what the VHP advocates means that Parliament must confiscate a private dispute pending in court, and impose a resolution by law. Effectively, MPs must play judges. Can they do so?
Reason for courts
One: We have a judicial branch for a reason. That is where disputes are decided, especially between private litigants. Empowering Parliament to commandeer cases under litigation renders the judicial branch discretionary. The court system — judges, lawyers, litigants — may function, but only so long as Parliament, benevolently, stays out. Once it gets involved, judges must surrender their docket.
Separation of powers is dead this way.
Surely, that cannot be.
Two: Courts don’t just adjudicate disputes. They do so in a particular way. They summon a forensic lens: identify relevant facts, corroborate evidence, cross-examine witnesses, analyse precedents. Above all, they reason. Now and then, they may fall short. But the standard is clear.
Parliament, though, has no similar standard. It may act on principles; it may not. It may legislate after careful analyses; it may not. It may speak only through the grammar of electoral politics. Often, it does.
Wrenching disputes away from courts deny litigants their right to judicial process. Indians have a right to access to justice, the Supreme Court has repeatedly intoned. Access, however, matters only if it culminates in a process — the forensic process of adjudication. Granting Parliament the power to seize dockets destroys the judicial process.
Surely, that cannot be.
Three: Such a law also tugs at the litigants’ right to equality. Courts are besieged by a crushing docket. Millions of cases, some grayer than this one, are pending in courtrooms across India. Why should MPs pick one — just one — from a bottomless pile? Why deny these litigants their right to judicial process? They have the right to equality like anyone else suffering the slow grind of Indian justice.
The law that the VHP, RSS and their groups demand is unequivocally unconstitutional. It would render a core constitutional idea (separation of powers), a core institution (judicial process) and a core fundamental right (equality) irrelevant.
If not a parliamentary legislation, an ordinance perhaps? The VHP has demanded the latter, too.
Ordinances are like parliamentary laws, but are made by the executive. Can the Modi government summon an ordinance on Ayodhya?
Governments may promulgate ordinances only on matters legislators may make laws on. If Parliament can’t legislate on Ayodhya now, the government, too, can’t.
The ordinance route is closed.
Ordinances, though, confront another hurdle. They are permitted only if laws are immediately needed, and Parliament isn’t at hand to legislate.
It is true that political parties without exception have abused this sly method, and gotten away with it. But new rules are in place now. After dithering for long, in 2017, the Supreme Court finally held the obvious — ministerial decisions to promulgate ordinances may be challenged in courts.
If promulgated, an Ayodhya ordinance will invite a legal challenge. Can the Modi government defend its necessity? Hardly.
Placating the VHP is no reason for an ordinance. Nor is the alleged delay. The suit has gingerly inched towards a final hearing. To intervene now is to erect an undue barrier.
An Ayodhya ordinance will face constitutional headwinds in the court.
So, once admitted, must all cases always be decided only in courts? Can Parliament never intervene?
It can — but only if the case isn’t a private dispute.
Courts often engage in policy matters through Public Interest Litigations: Should a city have three airports? Should the state sell natural resources only by auction? Should commercial surrogacy be allowed?
Parliament is free to intervene in such matters, even if they are pending before judges.
The Ayodhya dispute, though, is a different one.
Private parties want a court to assess their competing claims to a piece of land. Judges alone can decide that — not MPs, not ministers.
A constitutional system is what we, the people, make of it.
We will make a mess of it by trying to resolve the Ayodhya dispute in Parliament.