Is the Supreme Court judgment on the Babri Mosque-Ram temple dispute simply a culmination of the majoritarian impulse in society embedding itself deeper in India’s institutional framework? This question will be debated by political scientists and constitutional experts for many years to come. In this context, the Supreme Court judgment may be seen as an important marker which will help us study the big shifts that have taken place in India’s democratic culture and pluralist ethos over decades.
The creeping acquisition by majoritarian forces of the contested real estate, ever since the idol of Rama was illegally placed inside the Babri Mosque in 1949, arguably represents a gradual erosion of India’s constitutional values. After the idol was illegally placed inside the mosque, Nehru wrote to the then-CM of UP, Govind Vallabh Pant, asking him to direct the Faizabad district magistrate K.K.Nayar to remove the idol and restore status quo ante. But Nehru was told by the CM, based on inputs from the magistrate and local police chief, that removing the idol will disturb public order and could trigger riots. Nehru eventually was forced to relent.
It is an interesting coincidence that one key component of rationale the apex court’s judgment uses to handover the site entirely to the Hindu litigants is that splitting the disputed site, over which the Muslims admittedly had a solid legal claim, could disturb public order, peace and tranquility. This is broadly the language used by the bureaucracy of Faizabad with quasi-judicial powers back in 1949.
In this context, the judgment says:
“Even as a matter of maintaining public peace and tranquility, the solution which commended itself to the High Court is not feasible. Dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquility.”
This means the judges might have considered, on merit, dividing the land among the Hindu and Muslim litigants if in their assessment it had the potential to bring lasting peace and tranquility. And it seems clear that a coercive political and social climate had led to a different assessment by the judges. The element of coercion can be seen in the statements of RSS leaders, Sri Sri Ravi Shankar and others over the past year or so.
So while disagreeing with the Allahabad high court order which gave the Muslim parties possession of one-third of the disputed land, the Supreme Court probably tilted in favour of creating lasting peace and order which, in its wisdom, could only happen if the entire site was handed over to the Hindus. But in doing so, it may have shied away from giving full justice to the other party within the special jurisdiction invoked under Article 142 of the Constitution.
Senior advocate in the Supreme Court, Rakesh Dwivedi, puts it succinctly in his article in the Economic Times:
“Actually, the judgement denies restitution to the Muslims which should ordinarily follow the illegal demolition and desecration of the mosque. The court takes the compensation route rather than restitution by invoking Article 142.”
What if the SC had taken the restitution route which would have definitely been perceived by Muslims as full justice. The Muslim parties were certainly not looking for 5 acres of real estate somewhere in Ayodhya as compensation. They were fighting to undo the illegal act of demolition of Babri Masjid where they had been worshipping, along with Hindus who also offered prayers in the courtyard.
It appears maintaining lasting “public peace and tranquility” was privileged over full justice in this case. This is precisely what had happened in 1949, when maintaning peace and public order was given precedence over undoing a blatantly illegal act of placing an idol of Rama inside the mosque.
The larger point is that majoritarian coercion over time has deepened and legitimised a process where institutional remedies for highly charged communal disputes, such as the one in Ayodhya, have come to rest significantly on maintaining “peace and tranquility” rather than on delivering real justice to the minorities. It is here that the apex judiciary has tripped up and this is bound to give further fillip to majoritarian forces.
It is interesting to see how even within the Hindu right, the ground has shifted considerably since the late 1980s. I had interviewed Mahant Avaidyanath in the late 1980s, before the Rath Yatra by L.K. Advani had pitchforked the Ram temple issue as a key political plank for the BJP. At that time, many important Hindu leaders, including Mahant Avaidyanath, Justice D.N. Agarwal, Ayodhya litigant Ramchandra Paramhans had proposed a solution whereby a wall was to be erected within the site to separate the Ram Chabutara for worship by the Hindus with a separate entrance. The existing structure would be used by Muslims to offer namaz.
This solution had found traction with local Hindus and Muslims at the community level, who wanted lasting peace and tranquility, something that the Supreme Court doesn’t find possible now. Muslim leaders like Syed Sahabuddin and Salahuddin Owaisi had also supported this out of court settlement. Even the head of the Vishwa Hindu Parishad, Ashok Singhal, was open to the idea of a mutual settlement involving sharing the site.
But at some stage, the Sangh parivar chose to scuttle the idea in favour of a more lasting agitation for claiming the full Babri Masjid site. So majoritarian coercion works in insidious ways and leads us to a point where even the apex judiciary has to sue for “peace and tranquility”, possibly at the expense of full justice. This has been happening for decades. Only it has become so much more intense and transparent now. In a sense, the SC judgement is also quite transparent about this logic. From this point onwards, how this further impacts India’s pluralist ethos and the various constitutional guarantees for the minorities remains to be seen. The portents so seem not very good.