Ayodhya Judgment and the Legalisation of Hindutva Sovereignty

By rejecting the possibility or partitioning the land, the court has displaced justice and accorded primacy to sovereignty which is by its nature absolute.

More than anything else, the Ayodhya judgment has evoked a sense of bewilderment and betrayal as to how in spite of recognising the illegality of the placing of idols inside the Babri masjid in 1949 and the subsequent demolition of the mosque in 1992, the Supreme Court ruled unanimously in favour of granting the title over the disputed site to the juridical personality of Ram lalla.

However, this paradoxical ambiguity between legality and illegality is precisely what lies at the heart of every founding moment of any new sovereign order. The judicial decision, therefore, is not merely an amicable resolution of a property law dispute, but a resounding legalisation of state-assisted land appropriation.

The arch theorist of sovereignty Carl Schmitt has shown decisively in The Nomos of the Earth that every legal regime of land distribution is preceded by and premised upon a founding act of supreme appropriation, which is then invisibilised and hidden from view under the province of positive law.

Also Read: The Ayodhya Verdict is Based on a Strange Feat of Logic

In 2010, when the Allahabad high court decided to divide the disputed site equally among the three rival claimants instead of adjudicating upon the title suit, it in effect purported to convert a problem of appropriative sovereignty into a more manageable one of distributive justice.

By rejecting this tripartite partition and conferring title over the land ‘as a composite whole’ to the Hindu party, the Supreme Court, however, has in effect displaced justice and accorded primacy to sovereignty which is by its nature absolute, perpetual and indivisible. The most remarkable feature of the judgment though is that this task has been accomplished in the language of the rule of law itself.

The Allahabad high court has the highest number of pending cases, exceeding 900,000 cases in 2016 and 2017. Credit: PTI

The Allahabad high court. Credit: PTI

Excess of sovereignty over law

We must not forget that Hindutva as a 20th social movement generated political power by specifically articulating the sovereign exceptionality of its ethno-cultural, blood-and-soil nationalism against ordinary and everyday forms of Hindu Dharma on the one hand, and the foreign antecedents of independent India’s westernised constitutional regime on the other.

But after capturing the state, the movement has had to wrestle with the difficult question of what to do with this excess of sovereignty over law within its own imagination, as brought out starkly in the leadership’s inane and dithering responses to violent cases of mob lynching all throughout the country in recent times.

The Supreme Court decision has however done Hindutva a huge favour by legitimising its sovereign claim in a thoroughly desacralised secular form. The court has refrained from deciding the case on the basis of the Hindu faith and mythology associated with the disputed site understood as the birthplace of Lord Rama, which was subsequently believed to have been taken over and converted into a mosque after the Mughal conquest of India in the 16th century.

Also Read: Five Acres in Lieu of Citizenship

Instead, it has adjudicated the matter strictly on the basis of the evidentiary principle of ‘preponderence of probabilities’ in holding that the Hindus had a greater entitlement over the land, because they were not only worshipping there before the British annexation of Oudh in 1856, but had continued to stake a claim by being in exclusive possession of the outer courtyard and simply gazing at the sanctum sanctorum even when the disputed site was provisionally partitioned and the inner courtyard was given over to the Muslim side by the British.

In deciding the case on these terms, the court has thus rendered invalid the trite secularist critique of the Ram Janmabhoomi movement for its prioritisation of faith over reason and mythology over history.

Justification of the new normative order

It is to diffuse and deflate the violence of the sovereign moment that the court went on to acknowledge that the demolition of the Babri masjid was indeed an unlawful and illegal act. Although this assertion has been wholeheartedly welcomed, one must realise that demarcation of such spaces of criminality forms the very justification of the new normative order.

Criminal acts, after all, do not negate or transgress any given regime of legality, but constitute a mere exaggeration which the law seeks to contain. Just as a thief steals without disturbing the normativity of the property regime as such (he basically wants a larger share for himself), in contrast say with an anarchist who believes in no order or a revolutionary who dreams of founding a new order, the kar sevaks involved in the razing down of the mosque too, only represented the excess of sovereignty which law ought to control and suppress.

Rear view of the Babri Masjid in Ayodhya. Photo: Wikimedia Commons

An unavoidable collateral damage

A final implication of this legalisation of sovereignty is that the Muslims can no longer be envisaged simply as the other of Hindutva, who have to be shown their proper place in society as second class citizens. Their forcible dispossession has in fact been duly accounted for by the court, and compensated with a grant of an alternative plot of five acres in Ayodhya, which is apparently much bigger than the 2.77 acres of the disputed site.

It is as though the losses suffered by the Muslims have been reduced to an unavoidable collateral damage inherent to any sovereign act, somewhat akin to the large number of non-combatant civilian deaths inevitable in the American ‘war on terror’ and other humanitarian interventions across the globe more generally.

Also Read: Justice A.K. Ganguly: ‘If Babri Masjid Was Still Standing, Would SC Have Had it Demolished?’

According to the court, this damage has to be made good in a constitutional democracy like India, which is after all meant to be committed to the moralistic principle of ‘justice, equity and good conscience’. Justice thus reenters the discourse once again, but only after the resolution of the sovereignty question, and merely as a reparative measure to conceal its excess and exceptionality. The over-compensatory nature of the award, which is irreducible to any distributive or restorative logic, is but the mirror image of the incalculability and incommensurability of sovereignty itself.

The judgment is indeed momentous, as it paves the way for a neater, tighter and more sanitised Hindutva to hegemonise India in years to come. However, since the expansive impulse of sovereignty has always been in a dialectical tension with the limits of legality, the legalised sovereignty of Hindutva is ultimately nothing but a contradiction in terms. The hope is that it will die out of these very contradictions. The apprehension though is that the more it rots, the more it will flourish.

Moiz Tundawala is assistant professor of Constitutional Law, Jindal Global Law School and recently completed PhD in Indian Constitutional Thought from the London School of Economics and Political Science.

Salmoli Choudhuri is currently pursuing doctoral studies in Indian Political Thought from the University of Cambridge.