There
are three obvious problems with the Allahabad High Court
judgment on the Babri Masjid issue. Each of them in
isolation is potentially damaging for the Constitutional
fabric of the country; together they can cause irreparable
harm.
The first is the obliteration of the distinction between
''fact'' and ''faith'', which represents a serious retrogression
to pre-modernity. In medieval times witches were burned
because people believed that they engaged in evil deeds.
A premise of modernity is that this and other such ''beliefs''
cannot be accepted as ''facts'', that there has to be
independent and credible evidence on the basis of which
alone a ''fact'' can be established. Hence the verdict
of the Lucknow bench that Ram was born at the very spot
which was the sanctum sanctorum of the Babri Masjid,
because ''people'' believed this to be the case, is as
mystifying as it is retrograde.
There are, to start with, the obvious, but weighty,
questions of who these ''people'' are, how many such ''people''
must be there to qualify being called ''the people'',
and what evidence the Lucknow bench had, even regarding
the views of the ''people'', other than what it might
have gathered as a result of the activities, claims
and mobilizations of a few Hindu organizations which
professed to speak in the name of the ''people''. To take
the word of organizations that claim to speak in the
name of the ''people'' as the voice of the ''people'' is
dangerous enough. But to take the ''beliefs'' of the ''people'',
even assuming these are indeed the well-established
''beliefs'' of a very large number of people, as synonymous
with ''facts'' strikes at the very root of rationality
that must underlie a modern society.
A large number of ''people'', far more than those believing
that Ram’s actual birthplace was below the central dome
of the Babri Masjid, used to believe till recently (and
many perhaps do even now) that being touched by a Dalit
or sharing food with a Dalit brings great misfortune;
but to take this belief as a fact and to justify the
practice of untouchability on the basis of it defies
reason. For a Court of Law, no less, to wipe off the
distinction between ''belief'' and ''fact'' therefore sets
a dangerous precedent. The BJP had been demanding precisely
this, namely that whether Ram was actually born there
or not as a matter of ''fact'' is irrelevant; since ''people''
believe that he was born there, that alone is adequate
ground for building a temple there on the ruins of a
mosque. The Court has implicitly accepted the BJP’s
patently irrational and communal-fascist argument.
The fact that the Court has taken such a position is
hardly surprising, given the fact that one of the judges
gives expression to his own ''faith'' by claiming that
''He (i.e. Lord Ram) is everywhere'' and treats it as
a ''fact''. What Justice Sharma may hold as his private
belief is his own business. His choosing to parade his
own religious belief in a judgment that should be based
on ''facts'' shows the dangerous extent to which even
the senior judiciary in our country has become unmindful
of Constitutional demands.
The second disturbing aspect of the judgment is the
obliteration of the distinction between ''negotiation''
and adjudication. The outcome of negotiations always
depends upon the relative strengths of the protagonists.
Hence in any situation of conflict, especially of the
''either-or'' sort, where the relatively stronger protagonist
is absolutely intransigent over its claim, negotiations
necessarily work to the detriment of the relatively
weaker protagonist. In the present context, where the
Hindu organizations were intransigent, any process of
settlement through negotiations would necessarily have
worked against the organizations belonging to the minority
community. Since the latter considered this unfair,
it went to the court of law. The basic reason of its
going to the Court therefore, or even for the matter
being referred to the Court, is that the outcome arrived
at on the basis of relative strengths is not universally
accepted as ''fair''. The Court is supposed to be fair
because it does not settle issues on the basis of relative
strengths but entirely on the basis of evidence, facts
and legal provisions. The picture of justice, depicted
as a maiden, typically has her eyes covered for this
very reason, namely that justice is blind to the relative
strengths, positions, powers, and pulls of the protagonists.
The rationale of adjudication lies in the fact that
its outcome is decided on principles entirely different
from those underlying negotiations.
This is why the judiciary is different from societal
(as opposed to State) institutions like khap panchayats.
The latter are pre-modern, and hence anti-democratic,
for two distinct reasons: first, the attitudes of such
panchayats are pre-modern, based, as mentioned earlier,
on ''faith'', ''beliefs'', ''customs'' and practices rather
than ''facts''; second, the decisions of these societal
organizations necessarily and directly reflect the relative
strengths of the protagonists and the power relations
existing among them. The ''beliefs'' and power relations
no doubt are themselves correlated, but they are not
identical. The judiciary, by contrast, being a part
of the State, and hence based on a Constitution that
guarantees equality before law for everyone, is supposed
to function with its eyes closed, uninfluenced by the
relative strengths of the protagonists.
True, in a class society, this is never the case; but
that is because a class society constitutes in essence
a betrayal of a democratic Constitution. The fact of
relative strengths and power relations affecting the
process of adjudication, even within the framework of
a democratic Constitution that guarantees juridical
equality, is a de facto rather than a de jure outcome
of a class society. But when the outcome of adjudication
itself becomes de jure dependent upon the relative strengths
of the protagonists, then that represents a dangerous
trend, a retrogression from modernity and democracy.
And this is exactly what the judgment has done: it has
based itself not on ''facts'' and law but on considerations
of what might be acceptable. Since what might be acceptable
depends upon the relative strengths of the protagonists,
adjudication in this case has ceased to remain adjudication;
it has got influenced by the relative strengths of the
protagonists.
It is not surprising that after the verdict the BJP
is talking about rapprochement, about peaceful settlement,
about negotiated solutions. This is because its ''reservation
outcome'', i.e. the ''worst case scenario'' possible from
its point of view, as expressed by the Allahabad High
Court verdict, is already favourable enough for it;
it can only improve upon its position, by buying up
the one-third share that the High Court has given to
the Waqf Board, and hence getting exclusive rights over
the entire disputed land.
The third problem with the judgment is that it has accepted
the demolition of the Babri Masjid, an act that was
a direct violation of the law of the land, as a fait
accompli; and by remaining silent on this fait accompli
while giving a verdict that echoes in essence what those
who undertook the demolition were claiming, it has implicitly
rationalized post facto that horrendous and unlawful
act of demolition. L.K. Advani has quickly seized upon
the opportunity to claim that his ''Rath Yatra'' has been
validated post facto. And since the slogan ''Mandir Wahin
Banayenge'' has now been given a legal clearance, even
while the demolition of the mosque that prepared the
ground for the implementation of this slogan has gone
un-condemned, the BJP and other Hindu outfits feel vindicated
and absolved of any blame for their misdeeds.
True, this Court was not supposed to pronounce any verdict
on the demolition; it was concerned with a property
dispute. But, the obvious question arises: would it
have given the land under the central dome of the Babri
Masjid to ''the Hindus'' if the mosque was still standing?
If it had done so, then it would have had to implicitly
condone an act of demolition since the Hindu outfits
then would have been legally entitled to do what they
wish, with the land over which they had been given legal
rights. And if it had not done so, then it means that
the demolition has affected their verdict, i.e. that
the legal outcome of a property dispute has been affected
by an act of illegal demolition: the Hindu outfits have
benefited from their illegal action of demolishing a
five hundred-year old mosque.
The fact that the High Court verdict has been taken
in a calm manner by the people of the country is a matter
of great gratification. It is symptomatic of the maturity
of the people and also of the fact that communal issues
are being pushed into the background as more basic issues
of material life are becoming the focus of the people’s
attention. This is a very welcome development, and in
this context many have welcomed the Allahabad High Court
judgment as putting an end to the long-standing controversy,
so that the country can move on. Many therefore feel
that keeping the issue alive by going to the Supreme
Court should be avoided; and because of this they are
also unhappy with criticisms of the High Court judgment.
While this is an understandable position, it is erroneous
for two reasons. First, any retreat to pre-modernity
of the sort that the verdict has displayed is fraught
with serious consequences that go beyond the specific
issue under consideration, i.e. the Ram Janmabhoomi-Babri
Masjid issue. If ''fact'' and ''faith'' are not distinguished,
if adjudication is influenced by the relative bargaining
strengths of the protagonists, and if a patently unlawful
act brings legal dividends to those who perpetrated
it, then it augurs ill for democracy in the country.
Secondly, issues like this leave behind wounds that
fester and can cause damage later even if there is no
immediate cause for concern. Justice needs to be done,
in a manner that is in conformity with the blindness
of the maiden. That is the only firm basis on which
a modern State can be built; and the resolution of even
specific issues like this lies ultimately in the building
of such a modern State. Hopefully, the Supreme Court
to which the matter will be referred will be mindful
of the pitfalls of quick-fixes and will uphold scrupulously
the cause of law.
|
