Ram mandir: Why I find SC giving priority to 'religion' shocking

The apex court should not only be fair, but it must also be seen as fair.

 |  6-minute read |   22-03-2017
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On March 21, Chief Justice of India JS Khehar proposed to mediate an out-of-court settlement to the Ayodhya dispute since it's a matter of "sentiments and religion".

He even offered that other "brother judges" could replace him if the "parties" wanted, as "these are issues of sentiments".

But the problem is that none of the parties were present in court.

The court was hearing BJP leader Subramanian Swamy’s plea for constituting a bench to hear a batch of petitions challenging a 2010 Allahabad High Court order on the matter. And Swamy was not an original party to the case.

After Ayodhya-based Hashim Ansari, the original litigant, died last year, his son, Iqbal Ansari, has taken up the matter.

His lawyer, MR Shamshad, pointed out that they were astounded by the CJI's offer, and asked, "How did this appearance in the Chief Justice's court and the comments come about?" He stressed that "any decision cannot be one-sided."

bab_032217032655.jpg CJI JS Khehar has proposed to mediate an out-of-court settlement to the Ayodhya dispute since it's a matter of "sentiments and religion".

To understand why this is happening it is necessary to go back into history.

In the second half of 1949, socialist leaders Acharya Narendra Dev and Acharya Kripalani were planning to stand for by-elections in Faizabad.

The Uttar Pradesh Congress leadership, led by GB Pant, had heightened the Hindu religious sentiments in Ayodhya-Faizabad. And on the night of December 22,1949, some people managed to enter the Babri Masjid and installed the idols of Ram Lalla inside it.

Incidentally, the name Babri Majid (Mosque of Babur) is a misnomer. Babar never came to Ayodhya. It was his nobleman Mir Baqi who had built the mosque.

Nevertheless, the then prime minister Jawaharlal Nehru asked Pant to get the idols removed, and offered to send his secretary to facilitate the effort. But Pant was adamant.

The deputy commissioner of Faizabad filed a written statement in suit No.2 of 1950 on April 5 in which he denied that the Hindu plaintiff was entitled to any relief prayed for by him and stated:

1) The property in suit is known as Babri Masjid and it has for a long period been in use of a mosque for the purpose of worship by the Muslims. It has not been in use as a temple of Sri Ram Chandraji.

2) That on the night of December 22, 1949, the idols of Sri Ram Chandraji were surreptitiously and wrongly put inside it.

At this stage the RSS played no significant role. The Bharatiya Jana Sangh was founded later in 1951. A civil judge in December 1950, gave the rights of worship only to the Hindus, and restrained the removal of the idols.

A later judge cited copies of affidavits allegedly from Muslims that the mosque had not functioned from 1936. No opportunity was given to the Muslim defendants or the state to file counter-affidavits.

A division bench of the Allahabad High Court on April 26, 1955, criticised the civil judge for placing reliance on these affidavits and not allowing the defendants to place their own counter-affidavits.

In May 1986, there was a strong BJP movement to allow Hindu devotees to pray inside the disputed mosque.

Around the same time, there was another movement led by the Muslim clergy against the Supreme Court judgment in the Shah Bano case, which gave Muslim women the right to maintenance.

As the Muslim clergy succeeded in convincing Rajiv Gandhi’s Congress government in overturning the SC judgment it was largely seen as Muslim appeasement. That added more insult to the already injured Hindu pride over the Babri mosque standing at the purported birthplace of Lord Ram.

Under "double" fire, Rajiv Gandhi had the district magistrate and superintendent of police to testify in the Faizabad district court that they did not apprehend any law and order difficulty in enforcing this decision — to allow Hindu devotees to pray at the mosque.

The court met on a Saturday and the Muslim side was not informed or heard.

In the 1990s, PM PV Narasimha Rao stood by as the fortifications of the Babri Masjid were removed. A spate of official letters came much later. The masjid matter came before the Supreme Court. The advocate for the Muslim side, OP Sharma, warned the court that in an earlier instance of a temple being built, "militant" Hindus were allowed to congregate, forcing the police to back down fearing high casualties.

But the court ruled that the kar sevaks should be treated as state guests. It, however, noted OP Sharma's warnings in their judgment of November 29, 1992. They were influenced by a number of BJP leaders certifying that there would be no assault on the masjid. These promises were suddenly withdrawn before the assault on December 6, 1992.

The central paramilitary forces (CPMF) sent by the PM were instructed not to fire unless ordered to. The CRPF forces guarding the mosque marched out. The masjid was finally destroyed. When a group of citizens met president Shankar Dayal Sharma on the morning of  December 7, he told us that he made a statement at 5 pm on December 6, asking the Cabinet to meet.

The Cabinet met only at 6 pm, by which time the makeshift Ram mandir was already built. Intriguingly, Justice MS Liberhan, who was given 30 days to submit a report, took 17 years. The evidence compiled by the UP CID of the demolition, including videotapes and 48 audio cassettes, verified and seen by some citizens, disappeared after the initial period.

These details, which are not known by many, show the context in which the CJI made his comments. The Muslim side was obviously aggrieved because they had been let down earlier on several occasions.

The court, if they had known this history, would have been more restrained and would have hopefully taken a little more time to make a more nuanced proposal. After all, the judiciary's decisions are based on laws and the Constitution, not sentiments.

There is no religion, sect, caste, class, gender, region or philosophy guided by just "one" sentiment. In a country known for its diversity, pluralism, its vaunted laws and Constitution, it is shocking to see the court giving priority to "religion and sentiments".

Tulsidas, when he wrote the Ramcharitmanas, made no reference to the destruction of a Ram temple which supposedly happened during that period. Even Bhakti poets like Kabir never spoke of such an event. There are other similar versions.

CJI Kehar is perfectly within his rights to facilitate a solution to the Babri Masjid/Ram mandir dispute. But I humbly submit to the learned judge that in a multi-cultural India, as he is undoubtedly aware of, there are many other disputes. And the Supreme Court, from its own experience, should not only be fair, but it must also be seen as fair.

Also read: Ram mandir: Why is SC passing the buck?


Kamal Mitra Chenoy Kamal Mitra Chenoy @kamaichenoy

The writer is an academic and activist.

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