Stretching the Law to Suit the Illegal

In the Gyanvapi Mosque case, first the courts created a competing interest, then they rose above both interests and said that they cannot be seen as partisan.

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Who could have thought that an argument for syncretism and the blurry nature of culture can be used to first enter the religious or sacred places of non-Hindu communities and then lay claim over them? Ironically, this is what an observation by a three-member bench of the Supreme Court, hearing the petition by the Masjid Committee of the Gyanvapi Mosque, seems to be doing.

The Masjid Committee had come to the highest court aggrieved by the order of a Varanasi court leading to the survey of the Masjid to find out whether Hindu religious signs and deities are present in the Masjid or not. The lower court had responded to the plea of five Hindu women who wanted to pray in the mosque, claiming their deities reside there.

The Masjid Committee opposed this plea. It said that the suit was not maintainable as the Act protecting the status of the religious spaces as they were on August 15, 1947 was in place. In fact, it was this same Supreme Court which had held that the Act needed to be respected and enforced to safeguard the secular nature of the country, to preserve harmony and peace in society. The aim of the Act was not to allow any attempt which would lead to a Babri Mosque-like situation.

Before the maintainability of the suit could be decided, the Varanasi court raced to order a survey of the mosque by constituting a committee of lawyers headed by a Hindu lawyer. The survey work started with an extraordinary sense of urgency. Muslims objected; they also found the conduct of the head of the committee partisan. But the courts ruled against the Muslims and asked the committee to go ahead, adding two more Hindu members to the committee.

It was very clear that the survey was not an academic exercise. It was to buttress the claim of the ‘Hindus’ that since the mosque contained Hindu symbols, their claim over the mosque space should be given priority.

The Allahabad high court, which had very firmly thwarted all earlier attempts to justify the ‘Hindu’ claim using the finding of such surveys, this time did not find the survey problematic. The survey started and the Masjid Committee was compelled to come to the Supreme Court, seeking a stay on the process. The apex court acted in a leisurely manner and did not think it necessary to stay the survey. Its indifference to the concern of the Masjid Committee was disturbing. The court let the matter drag on for nearly four days. Meanwhile, the survey committee leaked ‘information’ that a shivalinga was found during the survey.

Watch | ‘RSS-BJP Have a List of Mosques, This Won’t Stop at Gyanvapi’: Assaduddin Owaisi

The Varanasi court, without even having the report of the committee which could not be final as the survey was still in progress, rushed to order that the place where the shivaling was supposedly found should be sealed and made out of bounds.

It was this order which was challenged by the Masjid Committee. The survey, as feared, did not remain an academic exercise. It led to the creation of a new status quo. The Varanasi court changed the nature of the Gyanvapi Mosque. It created a new interest in the mosque, a Hindu interest which did not exist prior to the order of the Varanasi court.

It was the wazukhana where the Hindu lawyers claim to have found a shivaling. The Muslims say, plausibly, that as in other mosques, this is a fountain from which the water emanates. As can be seen in the design of the other mosques, wazukhanas do have water fountains in them.

But the Hindus claim that it is for them to say what is a shivaling and what is not. What is a fountain to others can be a shivaling to them.

This is how the over-action of the lower court and the magnanimous inaction of the top court created a new sensitivity. A Hindu sensitivity, or more appropriate would be to say a majoritarian sensitivity. The courts saw to it that in a Muslim space, a Hindu interest is manufactured.

First the courts created a competing interest, then they rose above both interests and said that they cannot be seen as partisan. They have to take care of both sensitivities. That is how the word balance enters the judicial lexicon of India.

In the case of the Babri Mosque, this Hindu interest was created in 1949 by smuggling idols of Hindu gods and goddesses inside, in darkness. Then a stand was taken that the sensitivity associated with this interest cannot be ignored. The courts were indulging this illegality, which was rationalised in the name of Hindu sensitivity. Eventually it led to the ouster of Muslims from that space. The weight of Muslim sensitivity had to be less than that of the Hindu sensitivity.

In the case of the Gyanvapi Mosque, before our eyes in broad daylight a Hindu interest and sensitivity have been fabricated, aided and abetted by the courts.

The court now says that it cannot ignore the claim of the shivaling. When the Masjid Committee said that there is nothing to suggest its existence, the court refused to accept it. Then an interesting argument was made. In a country like India, examples of syncretic culture abound. They are normal. Hindu and Muslim symbols can coexist. Why cannot we celebrate both? the court asked.

You have to be a very sectarian person to disagree with this noble suggestion. That is how the court has tried to corner the Masjid Committee in this case. Can they deny Hindus entry in their mosque if there is a sign, a symbol, they regard as their own?

This judicial innovation, in which the argument of syncretism can be used to force Muslims to share their space, will be matter of discussion for the historians of the judiciary in India.

The court also found a way around the Act of 1991, which mandates that the state ensure that the status of religious spaces, as they were in 1947, are not disturbed. It said that this provision does not bar anyone from finding out or studying the peculiarities of such spaces. The survey that the Varanasi court ordered can be treated as one such act. “What is your problem with this curiosity?” the court demands to know.

So what was simple has now become complex. The Muslim sensitivity which was agitated by the court action has been made to confront with a Hindu sensibility. And the beleaguered court is now trying to find a balance.

One of the members of the learned bench had spoken earlier about the role of the judiciary in majoritarian times. Now we know what this role is.

Apoorvanand teaches Hindi at Delhi University.