Did the top court legalise India’s quest for a theocratic state?

November 10, 2019

THE unanimous judgement on the masjid-mandir dispute by India’s Supreme Court on Saturday could readily mutate into a legal basis to build a theocratic state on the rubble of India’s 72-year old democracy, reactions from legal eagles and political analysts indicate. On the other hand, a surge of sympathy for Indian Muslims can stymie Prime Minister Narendra Modi’s hardline Hindutva.

Adverse electoral results in two key states have already dented his cultivated image of invincibility.

The Kashmir siege and a citizen’s register to exclude Muslims are the other chestnuts in the fire. Both could produce surprising results.

A five-member bench, headed by Chief Justice Ranjan Gogoi, has awarded the disputed 2.77 acres of land in Ayodhya to a new trust to build a temple to Lord Ram at the precise site where the 16th century Babri Masjid was illegally razed on Dec 6, 1992. The court also ordered five acres of land to be allocated to Muslims to build a mosque.

Jurist Faizan Mustafa saw the verdict as weighing in in favour of religion over facts.

After all, in a reaction that the judges may not have anticipated, Hindutva leaders have already started discussing two more mosques, in Mathura and Varanasi, they claim were built by destroying Hindu temples.

“Based on the operative parts of the judgement, it looks like the Supreme Court gave importance to belief over other concerns,” Mr Mustafa said in an interview with The Huffington Post. “The court, even while observing that faith is limited to individual believer and that it cannot determine a land dispute, eventually gave the disputed land for the construction of a Hindu temple. This means that belief of a section of people was given prominence over the rule of law even though the latter should have ideally determined a property dispute.”

The judges noted to their credit that the placing of the Ram idols inside the mosque in 1949, to precipitate a legal dispute, as well as the 1992 demolition supported by the petitioners, was illegal. They did not find evidence too that the Babri Masjid was constructed on the site of a Hindu temple after demolishing it under Mughal Emperor Babur’s instructions, as claimed by Hindutva litigants. The fear yet is that the verdict, unwittingly perhaps, would add grist to majoritarian violence, interpreted increasingly as Indian nationalism.

A Gandhi-like reaction to the verdict came from Mahatma Gandhi’s grandson. “If the Gandhi murder case was to be retried by the Supreme Court today, the verdict would be: Nathuram Godse is a murderer but he is also a desh bhakt (patriot),” Mumbai-based Tushar Gandhi said in a tweet.

Expressing reservations to the fact that the bench had ordered land for a mosque, legal experts saw it as offering reparations. In other words, the court implied that someone was wounded or discriminated against to deserve compensation. If the Muslim case was weak, they didn’t deserve an inch of any land, the argument goes. If not, they should have been awarded the rubbled site for which they were fighting.

Some groups like Jamiatul Ulema e Hind said they were happy to abide the court’s orders and would not seek a review of the verdict.

Muslim MP Asaduddin Owaisi, however, offered a different view. “The Supreme Court is supreme, but not infallible,” Mr Owaisi said. “The judgement was awaited because we were fighting for justice. If the need was of five acres of land, I could have begged for the same in the streets of Hyderabad and the citizens would have donated the same to me.”

There was oblique redemption for academics, chiefly liberal historians, who have been at the receiving end of Hindutva’s full blast of rewriting the past. To their credit, the judges rejected garbled history on offer from the Hindutva petitioners, who cited an amalgam of mythology, beliefs and spurious archaeological evidence to press their case.

Seeking the bench’s permission to tear up one such document that purported to show the exact point of Lord Ram’s birth, senior counsel for the Muslim case, Rajiv Dhawan said: “This is Supreme Court and not a joke.”

In Mr Mustafa’s view, the judgement was fair in terms of religious freedom but went beyond its own aversion to taking sides in such matters. “When a party asserts freedom of religion, the court cannot enter into the debate on whether faith is rational or irrational, justified or unjustified, “Mr Mustafa said.

“However, when it comes to the property dispute, the court seems to have weighed religious belief over the rule of law. The court while pronouncing the judgement did try its best to strike a balance between law and faith. But clearly faith has the last laugh here.”

The main beneficiaries of the Supreme Court’s verdict on Saturday are organically linked to the main accused in the crime of demolishing the mosque. “And that’s not good for India,” wrote Siddharth Varadarajan in The Wire portal.

“None of this should surprise us since we were never dealing with a civil dispute between litigants operating on a level playing field but a naked power play. One in which the political agenda of the ‘cultural’ Rashtriya Swayamsevak Sangh is not hidden and the biases of the Uttar Pradesh and Central governments are on open display.”

Prime Minister Modi saw solutions coming from the verdict and appealed for calm. He was the pilot of the chariot his mentor L.K. Advani rode to whip up the frenzy that destroyed the mosque. That case is still pending.


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