Courts letting ancient sores erupt afresh

WHEN in a hole, stop digging further — thus goes the familiar proverb. After the Ayodhya temple judgments, Indian courts are now sought to be engaged in a frenetic digging up of ancient religious grievances of a similar nature.

The underlying primary assumption is that many mosques were built upon temples that had been demolished by invaders. The second assumption is that notwithstanding the passage of centuries of time, there is today a legal right to restore the old temple by demolishing the existing mosque if necessary. The third assumption is that any court anywhere in India can grant executable decrees of change of character of a place of worship of one faith, to a worshipper of another faith.

None of these assumptions was upheld by the five-judge Constitution Bench that passed the Ayodhya verdict. The judgment refutes the claim that a temple was brought down to build a mosque in medieval India. It awards decrees to both religions as having established their rights of worship at the spot.

However, using the Supreme Court's special powers under Article 142 of the Constitution, it imposed a majoritarian peace by pushing away the mosque to an alternative site and letting a temple be built on the original site.

Thus, all three assumptions listed above stood legally negated by the judgment that ran into over a thousand pages. Implicit in the judgment was the acceptance that the resolution of the Ayodhya dispute was to be treated as a one-off event and not as a precedent for further claims.

However, the message that percolated down to the public was that the Supreme Court had upheld the building of a temple where a mosque once stood. Public perception, therefore, was that all mosques were, henceforth, fair game for conversion.

What the courts did soon thereafter only added to the public perception. The Ayodhya judgment had barely been delivered that cases were filed for the conversion of mosques in Mathura and Varanasi.

The mosque committees responded that the suits had to be dismissed because the Places of Worship (Special Provisions) Act of 1991 prohibited the change of character of any place of worship that existed as on August 15, 1947. The Act of 1991 had been upheld unanimously in the Ayodhya judgment.

Thus, in the fresh Gyanvapi dispute, when an order of the courts in Varanasi was carried to the SC, the court had an opportunity to nip the trouble in the bud. That was not to be. It was an ill-considered remark by presiding judge DY Chandrachud — that the courts could still inquire into what the exact character of the place was on the first day of Independence — that gave a fresh life to the suit and let loose the dragon seeds of fresh hatred.

Running parallel to the Varanasi dispute was the dispute regarding the Eidgah in Mathura. Both suits were allowed by the SC to proceed and work their way through the court system. Some interim orders were also passed, depriving the Muslim side of the use of some portion of the facilities and allowing surveys to be done by the Archaeological Survey of India and various court commissioners.

The upshot is that courts are now instruments of an Ayodhyaesque kar seva.

It may well be that the judges of the Supreme Court felt it to be safer for public passions to be expended in the long process of the Indian litigation. They possibly thought that the legal process would help a nation resolve uncomfortable questions from the past. What they did not perceive was that disputes about religious sites are not about religions but about nationalism itself. Are we a nation of unity in diversity or are we a unitarian civilisation?

Journalist and author Nilanjan Mukhopadhyay, in his book on Ayodhya, The Demolition and the Verdict, writes: "…'inclusive' or 'multiple sub-nationalisms' (region and religion) were amalgamated into pan-Indian nationalism by the Congress, especially with the advent of Gandhi. The RSS, whose notion of nationalism was based on the aforesaid framework of the early years, used the Ram temple agitation to revive the unitarist view of national identity. It was put forth that although Ram was a Hindu god, the demand for a temple was not merely religious. The contention was that the notion of Ram as Maryada Purushottam symbolized the cultural or even national identity of all Indians, irrespective of personal faith. Every Indian should, consequently, acquiesce to the need for a Ram temple at Ayodhya, and not doing so would undermine Indian nationalism and be indicative of the person's lack of patriotic commitment. It followed from this that any person not backing the demand was ranged against national interests."

Thus, for the courts to entertain past disputes about mosques being built over temples is to encourage lawfare as a means of building a unitarian national identity. Courts must recognise that they have been complicit in the regression of India from a sovereign, socialist, secular, democratic republic to a de facto Hindu rashtra via temple and mosque disputes.

They are now being pulled further into the whirlpool via Sambhal, Ajmer, Badaun and other fresh instances. Trial judges in smaller towns and districts are unlikely to get into the finer points of law and constitutional history at the initial stages of litigation. Some might even be trigger-happy and pass immediate interim orders that facilitate a change of status quo.

It is for the Supreme Court to now take a call on whether to allow an oral observation of Justice Chandrachud to hollow out the pragmatic protection of the 1991 Act or let ancient sores erupt afresh upon the body politic.

The Supreme Court may do well to recall Mukhopadhyay's prophecy: "The Ram temple may cease to occupy much mind space among people. But the new mindset of Indians, framed in the course of the political movement for the temple, will be tough to alter in the years to come."

Speaking for myself, I can only recall what a magistrate, the poet Akbar Allahabadi, wrote over a century ago: "Mazhabhi behas main ne ki nahi, faltu akal mujh mein thi hi nahin."