On the one hand, the ‘unanimous’ judgment of the Supreme Court asserts that it is deciding this case strictly in accordance with the law and on the basis of the evidence led by the parties
On the other, it is very obvious that the way in which the Supreme Court has applied the law and assessed the evidence, it has used the lens of religion and faith to determine the validity of one claim over the other
When stripped down to its basics, what the Supreme Court has really said is that India belongs to Hindus, and Muslims are here on the sufferance of the majority
The Supreme Court’s judgment in the Babri Masjid title suit is dishonest and hypocritical.
Why do I say so?
On the one hand, the “unanimous” judgment of the Supreme Court asserts that it is deciding this case strictly in accordance with the law and on the basis of the evidence led by the parties. On the other, it is very obvious that the way in which the Supreme Court has applied the law and assessed the evidence, it has used the lens of religion and faith to determine the validity of one claim over the other.
On multiple occasions, whether in dealing with the validity of the Places of Worship Act, 1991 or in dealing with the arguments about the legal status of the deity and the place, the court repeats again and again how much it values secularism. Consider these lines from two different parts of the judgement for instance:
“Above all, the Places of Worship Act is an affirmation of the solemn duty which was cast upon the State to preserve and protect the equality of all faiths as an essential constitutional value, a norm which has the status of being a basic feature of the Constitution.“
“Religious diversity undoubtedly requires the protection of diverse methods of offering worship and performing religious ceremonies. However, that a method of offering worship unique to one religion should result in the conferral of an absolute title to parties from one religion over parties from another religion in an adjudication over civil property claims cannot be sustained under our Constitution.”
This is par for the course for a judgment written by Justice DY Chandrachud (even though he’s not mentioned as the author) — high-flown, high-minded rhetoric seeking to talk of constitutional values and principles. Read in advance, it would suggest that the court was going to go solely by law and evidence in deciding this case.
However, the fact that this principle of secularism has not really informed the core of the judgment is especially clear from the way in which it has weighed the claims of Hindu and Muslim parties to the title through “adverse possession”. As this article points out, while Muslim parties had to prove through evidence that they enjoyed “exclusive possession” of the property, the court applies no such standard to the Hindu parties. Somehow, the fact that the site was used as a mosque even after 1858 is not considered sufficient to vest title of the property to the Muslim parties.
Representational image. Reuters
Perversely, the fact that ownership of the inner courtyard of the property was contested is held against the Muslim parties, but somehow also confers title to Hindu parties simply because they held the outer courtyard without contest. The court uses another sleight of hand to say that the whole property is indivisible and therefore whoever holds the outer courtyard must therefore be deemed have had exclusive possession of the entire property, irrespective of the fact that the title to the inner courtyard is the source of the dispute. This is an absurd finding of law and facts that finds no support in any realm of logic or reasoning.
That two very different standards are being applied to determine the claims of Hindu and Muslim parties is fairly clear from the way the judgment is reasoned. Yet, the court seems to believe that it is deciding this purely on secular principles of law. Even though the court notes that the placing of the idols in 1949 was clearly illegal and likewise the destruction of the Babri Masjid in 1992, it seems to suggest that this only strengthened the case of the Hindu parties, despite noting the illegality of the acts.
When stripped down to its basics, what the Supreme Court has really said is that India belongs to Hindus, and Muslims are here on the sufferance of the majority. What follows from it is the relief that it has “moulded” — the title to the Hindu parties as a matter of right, an additional piece of land to the Muslim ones as charity. Hindus, in the court’s view, are the only ones capable of bearing rights as citizens whereas Muslims must make do with whatever comes their way out of charity or noblesse oblige.
This, needless to say, is the core ideology of the RSS and the BJP and this is what really informs the reasoning and the eventual conclusions of the court. The hypocrisy comes in through the lip service the court pays to secularism and the Constitution in the earlier part of the judgment and the elaborate pretence it enacts to suggest that this is indeed a judgment defensible on the law or on facts.
One gets the sense that the court is fully aware of the dishonesty and hypocrisy of its approach.
The main judgment, as mentioned earlier does not indicate an author. There’s an “addendum” tacked on at the end that the majority quite clearly wishes wasn’t. The addendum is in fact a “concurring but actually dissenting” opinion authored by Justice Ashok Bhushan (again not named, but not hard to guess) which is refreshingly honest in arguing that religious claims by Hindus are above the law and the constitution.
In fact, he states straight away that the core question in the case is “whether the disputed structure is holy birthplace of Lord Ram as per the faith, trust and belief of Hindus”. As far as he is concerned, the principles of evidence should be used to establish not objective facts on the ground but the “faith and belief” of Hindus. As far as he is concerned, once this is done, the act of setting up the Babri Masjid itself must be retroactively rendered illegal and the land rightfully restored to the Hindu parties.
I would call it a concurring opinion for the simple reason that what the rest of the judges have tried (and failed) to hide with disingenuous arguments about adverse possession and evidentiary standards, Bhushan has simply cut to the chase and held that in deciding the Ayodhya dispute, the court is only really concerned about the faith and belief of Hindus. For him, it is not a title suit. It is not about balancing or secularism or the Constitution. He is not interested in trying to account for the events of 1949 or 1992 in any way. His honesty on that front is refreshing, even though his open bigotry is less welcome.
Longstanding observers of the court will note that such dishonesty and hypocrisy on the part of the Supreme Court is not new. The most egregious example perhaps is Olga Tellis versus Bombay Municipal Corporation, where in a case concerning the eviction of pavement and slum dwellers by the now-Brihanmumbai Municipal Corporation, the Supreme Court waxed eloquent for multiple pages about the importance of the right to livelihood and shelter — before concluding that pavement and slum dwellers need not be heard by the BMC before being evicted since the Supreme Court itself had heard them and decided they be evicted because they are a “nuisance”.
There too the Supreme Court found it in the goodness of its heart to give the pavement dwellers time till the end of that year’s monsoon to be evicted and maybe some land offered to them if the government thinks fit. It’s probably appropriate to note that the author of that judgment was then Chief Justice of India, Justice YV Chandrachud.
Updated Date: Nov 11, 2019 10:48:56 IST