Defeated logic: The Supreme Court's Ayodhya verdict signals forthcoming Hindu Rashtra

Tuesday, November 19, 2019

As the Supreme Court’s Ayodhya verdict paved the way for a Ram Mandir (Hindu temple), which was demanded by the ruling Bharatiya Janata Party (BJP) and other affiliates of the Rashtriya Swayamsevak Sangh (RSS) — the fountainhead of global Hindutva fascism — since years, the Indian state’s metamorphosis into an official Hindu Rashtra, ie, a theocratic Brahminical dictatorship, is nearly done. The Supreme Court’s 1049-page-long Ayodhya verdict, full of self-contradictory statements, placed the matter of faith at a higher pedestal by sidelining facts, data and evidence. This was an unprecedented judgement after the apex court endorsed the execution of Afzal Guru to satisfy the “collective conscience of society”.

The Supreme Court’s five-judge Constitution Bench, headed by outgoing Chief Justice of India Ranjan Gogoi, wrote these words before announcing the outcome of the Ayodhya dispute case:

795. The facts, evidence and oral arguments of the present case have traversed the realms of history, archaeology, religion and the law. The law must stand apart from political contestations over history, ideology and religion. For a case replete with references to archaeological foundations, we must remember that it is the law which provides the edifice upon which our multicultural society rests. The law forms the ground upon which, multiple strands of history, ideology and religion can compete. By determining their limits, this Court as the final arbiter must preserve the sense of balance that the beliefs of one citizen do not interfere with or dominate the freedoms and beliefs of another. On 15 August 1947, India as a nation realised the vision of self-determination. On 26 January 1950 we gave ourselves the Constitution of India, as an unwavering commitment to the values which define our society. At the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law. Under our Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance are both subject to the law and equal before the law. Every judge of this Court is not merely tasked with but sworn to uphold the Constitution and its values. The Constitution does not make a distinction between the faith and belief of one religion and another. All forms of belief, worship and prayer are equal. Those whose duty it is to interpret the Constitution, enforce it and engage with it can ignore this only to the peril of our society and nation. The Constitution speaks to the judges who interpret it, to those who govern who must enforce it, but above all, to the citizens who engage with it as an inseparable feature of their lives. (sic) (PART P, pp 920)

Though factually India gave itself the Constitution on 26 November 1949, the Supreme Court’s Constitution Bench affirmed that it’s going to abide by the Constitution to decide upon the case, the very Constitution that “does not make a distinction between the faith and belief of one religion and another.”About the case, the Supreme Court’s verdict said:

796. In the present case, this Court is tasked with an adjudicatory task of unique dimension. The dispute is over immovable property. The court does not decide title on the basis of faith or belief but on the basis of evidence. The law provides us with parameters as clear but as profound as ownership and possession. In deciding title to the disputed property, the court applies settled principles of evidence to adjudicate upon which party has established a claim to the immovable property. (sic) (PART P, pp 921)

Quite ironically, ignoring key values represented by points 795 and 796 of Part P of the judgement, the Constitution Bench decided to give faith an upper-hand. By calling the deity of Lord Ram, the Hindu mythological king revered by the faithful, a juristic person, the Supreme Court’s verdict held the suit filed by it maintainable because of “balance of probabilities”. 

The verdict reads:

800. Suit 5 has been held to be maintainable at the behest of the first plaintiff (the deity of Lord Ram) who is a juristic person. The third plaintiff (next friend) has been held to be entitled to represent the the first plaintiff. We are of the view that on the one hand a decree must ensue in Suit 5, Suit 4 must also be partly decreed by directing the allotment of alternate land to the Muslims for the construction of a mosque and associated activities. The allotment of land to the Muslims is necessary because though on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims, the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims. This Court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. The Constitution postulates the equality of all faiths. Tolerance and mutual co-existnce nourish the secular commitment of our nation and its people. (sic, emphasis & underlining mine) (PART P, pp 922-923) 

This means, that the balance of probabilities holds more value than the power of evidence, documents and proof. When the Supreme Court’s verdict said that “the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing”, it at the same time negated the assertion by accepting that “the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims.” If there was a mosque that the Muslims were “dispossessed of due to the desecration that happened on “22/23 December 1949”, that it “was ultimately destroyed on 6 December 1992,” and that “There was no abandonment of the mosque by the Muslims.” then it’s clear that there was only a mosque at the disputed place and hence, the claim of the deity, which is considered as a juridical person, stands void. However, going against its own findings, the Constitution Bench gave away the land to the deity. No clarification was provided but the balance of probabilities.

If the Supreme Court literally meant: “Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law.” then it should answer why the Muslims won’t get the land of the Babri Masjid back with a mosque constructed on it at the cost of the Government of India, which now owns the land and as the mosque was demolished on 6 December 1992 due to its own negligence and connivance with the perpetrators? 

The Supreme Court’s Ayodhya verdict categorically called the demolition of the Babri Masjid a crime as per the law, stating:

XVII On 6 December 1992, the structure of the mosque was brought down and the mosque was destroyed. The destruction of the mosque took place in breach of the order of status quo and an assurance given to this Court. The destruction of the mosque and the obliteration of the Islamic structure was an egregious violation of the rule of law; (sic) (PART P, pp 913-914)

If the demolition of the mosque “was an egregious violation of the rule of law”, then it becomes definitely an imperative task for the judiciary to deliver justice. Rather than providing the aggrieved party, ie, the Muslims, justice and relief by returning the land to them, and ordering the Central Government to rebuild the mosque, which former prime minister PV Narasimha Rao promised in December 1992 to rebuild within one month, by penalising the perpetrators, the apex court gave away the land to the perpetrators of the crime. That too, with secular jargons!

The land was allotted to the Hindutva fascist camp because the Bench found “the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims”, which, however, is not specifically stated why. The only possessory claim by the Hindus is that there is a faith in Ayodhya being the land where the mythological figure, a party in the suit through a next friend, Rama was born. The evidence was faith, mythological text, historical travelogues and hearsay that became folklore. There wasn’t any evidence, unlike the Muslim side’s documents that showed how the Babri Masjid was owned by the Muslims until the colonial period when the administration began recording ownership deeds. 

Read, for example, the following paragraph in the Supreme Court’s Ayodhya verdict:

798. As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century. After the setting up of the grill-brick wall, the structure of the mosque continued to exist and there is evidence to indicate that namaz was offered within its precincts. The report of the Waqf Inspector of December 1949 indicates that Muslims were being obstructed in free and unimpeded access to mosque for the purposes of offering namaz. However, there is evidence to show that namaz was offered in the structure of the mosque and the last Friday namaz was on 16 December 1949. The exclusion of the Muslims from worship and possession took place on the intervening night between 22/23 December 1949 when the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship. After the proceedings under Section 145 of CrPC 1898 were initiated and a receiver was appointed following the attachment of the inner courtyard, worship of the Hindu idols was permitted. During the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago. (sic, emphasis and underlining mine) (PART P, pp 922-23)

If “preponderance of probabilities” is a yardstick used to judge facts and arrive at a conclusion, then isn’t it enough to assert that the name Babri Masjid itself claims that it was a mosque and legally standing at a time when the Constitution was adopted on 26 November 1949? The Babri Masjid remained without the idols for nearly a month after the Constitution was adopted, which makes it imperative for the Supreme Court, one of the custodians and the best interpreter of the lifeline of the state, to uphold the rightful ownership of the Muslims on the land and the religious place that was built a few centuries ago. However, this basic thing was grossly overlooked, even when the justice categorically states that “The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.

When it comes to deciding the fate of a lawsuit, the matter of faith can’t be a piece of evidence in a court of law of a country that is officially a secular republic. The matter of faith is a person’s personal matter and even in the Ayodhya verdict, the Bench uttered the same point, which I have mentioned above. Yet, the conclusion, the takeaway of the verdict isn’t just contrary to what’s said earlier but also to the values of secularism that the Supreme Court itself upheld in the S. R. Bommai v. Union of India, 1994, in which the Bench said: “secularism is a basic feature of the Constitution”, meaning the state has no religion. However, when the same religious faith, practices and beliefs were used to reach the judgement, using “preponderance of probabilities”, then the Ayodhya verdict triggered great disappointment among the Muslims.

What the Muslims looked for in this verdict wasn’t merely a piece of land returned to them, but justice as promised by the law of the land and the Constitution that makes them equal citizens of the country. The Muslims wanted justice but were denied justice. The Ayodhya verdict says that justice won’t prevail if “the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque”, but at the same time asked:

“...we direct that land admeasuring 5 acres be allotted to the Sunni Central Waqf Board either by the Central Government out of the acquired land or by the Government of Uttar Pradesh within the city of Ayodhya. This exercise, and the consequent handing over of the land to the Sunni Central Waqf Board, shall be conducted simultaneously with the handing over of the disputed site comprising of the inner and outer courtyards as a consequence of the decree in Suit 5.” (sic) (PART P, pp 923)

Why the Supreme Court is allocating the land where a mosque stood to the Hindutva fascist organisations when it has mentioned that its demolition was an utmost illegal act? If the mosque was built on a Hindu temple in the medieval period, then why the Supreme Court’s verdict stated that the Archeological Survey of India’s (ASI) findings didn’t confirm that a temple was demolished to build the mosque? If no temple was demolished then why the verdict didn’t order rebuilding Babri Masjid? Moreover, does the apex court has any jurisdiction over a historical event and deliver a judgement on historic rights and wrongs of a time when the court and the Republic didn’t exist? If there was a mosque when the Supreme Court became the apex court of the Union of India, then why wasn’t it rebuilt? What would’ve been the Supreme Court’s verdict if the mosque existed today and wasn’t demolished on 6 December 1992?

While the Supreme Court has specifically asked the Central Government to start the formation of a trust to build the temple within three months and asked it to handover the 2.77-acre disputed land to such a trust from the 68-acre-land that it acquired in 1993 under the Acquisition of Certain Area at Ayodhya Act 1993 (Ayodhya Acquisition Act 1993), it didn’t specify the 5-acre land that should be given to the mosque and left it on the wisdom of the Islamophobic BJP governments at the centre and the state. It’s a well-known stand of the RSS-led Hindutva fascist camp that no mosque construction would be allowed in Ayodhya. Now the Supreme Court’s verdict asking for a mosque building at a 5-acre land that the government thinks is suitable, without any clear timeframe, has actually dealt a big blow to the Muslim community. The Uttar Pradesh government had already renamed the Faizabad district — in which Ayodhya town is located — to Ayodhya, which enables the government to allocate any land in the district and thereby follow the Supreme Court’s order.

What’s shocking about the verdict isn’t that the Supreme Court ordered the construction of a temple at the site of the 15th-century Babri Masjid, which was demolished by a feral mob of Hindutva fascists led by the RSS and its progeny organisations on 6 December 1992 after years of mobilisation and Islamophobic agitation, but the sheer apathy shown towards the constitutional norms and law to help the Hindutva fascism pulverize the gateways of logic and rationale. Under the sclerotic regime of Prime Minister Narendra Modi and the BJP, the Muslims can’t expect justice; still, a section of the community pinned their hopes on the apex court’s wisdom, showing utmost faith in the institution and the Constitution, to be betrayed by both at the end.

Former Supreme Court judges and many legal experts are also raising questions over the contradictory verdict. Criticising the Ayodhya verdict, Justice (retired) Markanday Katju wrote in The Wire:

“The recent Ayodhya verdict of the Supreme Court will go down in the annals of Indian legal history in the same category as its 1975 decision in ADM Jabalpur vs Shivakant Shukla – except that unlike the latter, in this one there is not a single courageous dissent

In substance, the court has said that might is right, and has laid down a dangerous precedent sanctifying aggression.” [sic]

Another former Supreme Court judge, justice (retired) Ashok Ganguly was quoted by The Telegraph:
“Who owned the land 500 years ago, does anybody know? We cannot recreate history. The responsibility of the court is to preserve whatever there is. To preserve the rights to whatever there is. The court has no duty to recreate history. What was there five centuries ago, the court is not supposed to know.The court should say that the mosque was there — a fact. Not a historical fact, (but) a fact that everybody has seen. Its demolition has been seen by everybody. That should be restored. If they have no right to have a mosque, then how are you directing the government to give five acres of land to build a mosque? Why? You are accepting that the demolition of the mosque was not proper.” (sic)

Babri Masjid demolition was the single biggest attack on the secular values of the Indian Constitution. It wasn’t that minority places of worships weren’t attacked before 6 December 1992; it wasn’t that the minorities didn’t suffer injustice or pogroms before the Babri Masjid demolition. The Babri Masjid was demolished within eight years of the macabre Sikh genocide done by the Congress party and within few years of the gruesome Bhagalpur pogrom, Meerut massacre, Kashmiri Pandit massacre (first Hindu massacre done in connivance with Indian state), the massacre of Kashmiri Muslims throughout the valley, etc; however, it was the first time that the state officially supported the thugs who went on a rampage and demolished a 15th-century mosque in full public view. It’s now the completion of the circle as the judiciary endorsed the Babri Masjid demolition by offering the disputed land to the perpetrators of the crime, which the apex court ironically condemned as an “egregious violation of the rule of law”.

Since the Supreme Court began a marathon hearing of the Ayodhya plea, an ominous silence gripped the Muslim community. Taking into consideration the fact that most of the recent judgements of the Supreme Court helped the Modi regime, there was less hope for justice within the Muslim community. There was a sense of fear, mixed with anxiety and frustration within the Muslim community. Babri Masjid became a double-edged sword for them. If the Supreme Court’s verdict would’ve given them the land, then the Hindutva fascists would’ve started a mayhem and large-scale pogroms with the state’s help, and the Modi regime would’ve simply override the verdict by enacting a reactionary law using its brute majority in the Lok Sabha. The denial to the Muslims their rightful title is itself a denial of justice.

This very denial of justice to a community after accepting that they suffered injustice is what can be called a great mockery of justice in independent India. This is for the first time the Supreme Court rang the eerie alarm that the Indian state is marching ahead towards the RSS’s vision of Hindu Rashtra. This march is not a new phenomenon. Rather, the foundation of the Hindu Rashtra was laid by the Congress party through its selective appeasement of the Hindutva fascist forces since their inception. Never did the Congress party or the left forces lead any ideological struggle against the Hindutva fascist forces, rather they have, under different scenarios, helped these forces gain traction and grow powerful. 

Even when the Supreme Court’s Ayodhya verdict came, all parliamentary parties from the self-styled Bahujan champion Bahujan Samaj Party, the self-styled Muslim representative Samajwadi Party, the so-called left under the Communist Party of India (Marxist), the pro-market middle-class’s representative Aam Aadmi Party, to the grand old Congress party, none showed the courage to criticise the verdict or call it anti-minority. Rather, they called it a balanced judgement that “closed the chapter” of India’s long-pending communal dichotomy. They supported the concept that the verdict will buy peace, the notion that the Supreme Court and the mainstream press created by propagating that a threat of a majoritarian violent backlash looms large on the minority community if the verdict won’t support the Hindutva fascism’s demand for a Ram Mandir at the disputed territory.

The question, therefore, is, whether the Muslims can safeguard their other places of worship by compromising on Ayodhya? Can having a Ram Mandir in Ayodhya stop the Hindutva fascist camp from its further transgressions on Muslim places of worship all over India? Can one forget the Hindutva fascist camp’s slogans like “Yeh toh kewal jhanki hain, Kashi-Mathura baaki hain” (this — Ayodhya — is a trailer, Kashi and Ayodhya are still left)? How can one guarantee insulation of the Shahi Idgah mosque of Mathura and Gyanvapi Masjid of Kashi (Varanasi), Uttar Pradesh, Kamal Maula mosque of Dhar, Madhya Pradesh, the Jama Masjid of Delhi, the mosque near Qutub Minar in Delhi, etc, that are under the Hindutva fascist camp’s demolition radar? How can one guarantee that the Hindutva camp won’t attack the other places of worship of the Muslims and use the Supreme Court’s verdict as a weapon in their obnoxious agenda? The threat of the majoritarian violence and demolition didn’t cease to exist for these mosques after the Ayodhya verdict, rather, the Supreme Court’s order, based on “preponderance of probabilities” will empower the Hindutva fascist camp to raze more places of worship that belong to the minority communities. 

As this ordeal continues, as India marches ahead towards the realm of the Hindu Rashtra — the dreamland of the RSS-led Hindutva fascist camp — the space for the minority Muslims, and later for the Christians, will continue to shrink. Forget new, even protecting the existing places of worship will be a challenge as they will be inevitably encroached upon. With each new places for temples, the Hindutva fascist camp will earn huge amount of money through their international and domestic connections, but the Muslims will lose their space, their right, their existence under the hitherto omnipotent Constitution. No mainstream political party across the ideological bandwidth, except the Islamist fundamentalist All India Majlis-e-Ittehad-ul-Muslimeen or the AIMIM of Assauddin Owaisi, is raising the issue and addressing the Muslim concern. This is a problematic trend of India’s so-called secular politics; this is the painful reality of Modi-fied India, where no one in the mainstream parliamentary politics dares to raise the concern of the Muslims fearing the loss of Hindu votes. 

The Supreme Court’s Ayodhya verdict, which happened due to the muscle-flexing by the Hindutva fascist camp and the ruling Modi regime, will open the floodgate of violence against the Muslim community. The loss will not remain contained within Ayodhya but will actually engulf entire India. The Hindutva fascist camp, using the Supreme Court’s Ayodhya verdict, will demolish any mosque they will blame built on a demolished temple. This will eventually intensify violence against the minority communities and their existence in a republic that promised them secularism. As a Muslim in Modi-fied India, as a minority in the forthcoming Hindu Rashtra, I don’t care about my place of worship but my children’s right to co-exist with their Hindu counterparts as equal citizens with equal rights. What will happen to it? For 27 years, we didn’t see the Babri Masjid, but for all these years we believed that the Indian law and the Constitution will do justice to us. Today, left betrayed, shall we question the Constitution, the institutions like the Supreme Court that have a role to defend the Constitution or our own stupidity to have faith in them? Let us know, because each moment we will question your conscience as we suffer an unprecedented ordeal for our immediate identity in the so-called secular republic.

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