The Future Is Safe

It is rare for India’s highest court to wade into a religious dispute. In the 69 years of its history, it has scrupulously stuck to a secular script of the Constitution. November 9th was a rare day when it was forced to deliver a judgment in a dispute over a religious structure that had festered for more than a century and whose origins go all the way back to the early years of Mughal rule in India.

The court did not disappoint.

Delivering a judgment on a clutch of petitions, the court ordered the Union Government to create a trust that will be handed over 2.77 acres of the disputed land in Ayodhya. The Sunni Central Waqf Board, one of the parties in the case, will be given five acres of land at an appropriate location in Ayodhya. In effect, the disputed site will pass on to the Hindu side, clearing the path for the construction of a Ram temple in Ayodhya. With this, curtains have come down on a bitter and protracted litigation that began in 1885.

In the 1,045-page judgment, the court has repeatedly highlighted the secular nature of the Constitution. It also dubbed the demolition of the disputed structure at Ayodhya in 1992 as a crime. But ultimately, it had little option but to pass a favourable verdict for the Hindu side. This it did after a very careful weighing of evidence. This showed, very clearly, that the Muslim side could not demonstrate the exclusive possession of the inner courtyard of the mosque.

‘There is no evidence to the contrary by the Muslims to indicate that their possession of the disputed structure of the mosque was exclusive and that offering of namaaz was exclusionary of the Hindus; Hindu worship at Ramchabutra, Sita Rasoi and at other religious places including the setting up of a Bhandar clearly indicated their open, exclusive and unimpeded possession of the outer courtyard. The Muslims have not been in possession of the outer courtyard…’

These words and the import of the judgment have stirred a hornet’s nest in Indian intellectual circles even as virtually all political parties have welcomed the judgment.

As could be expected, a number of divergent opinions followed the judgment. There was nothing surprising that they were political in nature—only a couple had anything to say about the judicial qualities of the verdict. The surprising thing is that these opinions are hostage to India’s political past and whatever they said about the country’s future had a dark edge to it. They fall in two categories. One, that Indian Muslims have been reduced to the status of ‘second class citizens’ and, two, the judiciary has been ‘compromised’.

The more extreme opinions centre on the ‘second class citizens’ status. This is a claim that is as emotional as it is off the mark. This can be reformulated into two questions: Does an adverse judgment around the possession of a single place of worship render an entire community ‘second class’? On what basis is the claim made? Except for a mix of fear, anger and anxiety, there is little rational basis to suggest this.

Linked to all this is the judgment: ‘its implications for the future’. Two points are implicit in this line of reasoning. First, the danger of Hindu triumphalism and, second, other Muslim places of worship being reclaimed by the majority community. The Government, leaders across the political spectrum and many members of civil society stressed in the days before and after the verdict that it ought not to be seen as a victory or defeat for any community. Except for some fringe elements, there was hardly anyone who ‘celebrated’ the court’s decision.

The thought that more Muslim places of worship will be converted into Hindu temples is perverse, to say the least. Legally and in actual terms, there are hardly any instances of mosques being demolished with the explicit purpose of changing their religious character. The Babri mosque was the only one that stood out in this respect. Legally, the dispute dates to the 1850s but from the perspective of religious claims and counter-claims, it has a much longer timeline. The mosque was demolished on December 6th, 1992.

One year before that event, the PV Narasimha Rao Government enacted the Places of Worship (Special Provisions) Act, 1991. The law, in the words of then Home Minister SB Chavan, who moved the Bill in the Lok Sabha, was to “foreclose any controversy in respect of any place of worship that existed on the 15th day of August, 1947”. In effect, the Act froze the character of all religious places as they existed on the day that India gained Independence. It also banned the conversion of any religious place from one to another religion. The law explicitly kept the Babri mosque-Ram Janmabhoomi dispute out of its ambit ‘since the case… forms a class by itself, it is necessary to exempt it entirely from the operation of the Act’.

Since then, this law forms the cornerstone for protecting religious places. Unless it is repealed or defied brazenly, there is little chance that places of worship can be converted. The counter to this, one that has been heard again and again in recent days, is that if the Babri mosque could be demolished, how can such occurrences be ruled out in the future? There is no answer to such fear-mongering except to point out the extreme rarity of such desecrations. What is important to point out is the political basis of such fear-mongering.

The most incoherent attacks were, however, reserved for the judiciary. In one way or another, all revolve around the claim that the judiciary is now a ‘majoritarian’ institution. The line of reasoning is simple: the restitution of the demolished mosque to the Muslim community was a test of justice. Because the court failed to do this, marginalised groups will lose faith in institutions. The trouble in this is that it views justice as political and not something removed from it. This speaks about the failure of ‘secular’ politics and not the functioning or the nature of the Supreme Court.

From 1992 until 2014, with an exception of four years, India was ruled by coalitions that were leftist in complexion. In these 23 years, virtually no efforts were made to resolve the dispute by negotiation, which acquires a political colour in disputes like the one in Ayodhya. To be sure, before the demolition, there were sporadic attempts at negotiation. To an extent, this did not work because of intransigent positions. But there was more at work: lack of imagination about where these hardened positions would lead. Once that path closed, the matter headed to the judiciary. Judicial decisions by their nature are different from politics. They depend first and foremost on evidence, and not on how things ought to be.

As the case demonstrates, the court examined evidence with a fine-tooth comb. Much has been made of expressions like ‘balance of probabilities’ in the judgment. But what else can be expected from the court that is weighing evidence in a dispute that goes back hundreds of years and where evidence is of a different nature as compared to normal cases of disputed titles? Imputing political motives to the court does more harm to its credibility than the judgment delivered on November 9th ever will.

The most inchoate criticism against the verdict was based on counterfactual reasoning. In the judgment, the court stated that the 1992 demolition was a crime. But based on evidence, it ordered handing over the site in Ayodhya for construction of a temple.

In this case, some analysts asked, what would the court have done in case the mosque had not been demolished in 1992? It is hard not to call this silly. Rhetorical questions like ‘what would have happened if X had not happened?’ are the stuff of counterfactual history, something that even historians don’t take seriously. A court will certainly not admit this line of reasoning as it lacks any evidentiary value. But from one perspective, there is something of interest here. Why stop at 1992? One can extend the historical chain back to December 22nd-23rd, 1949, when the idols were placed under the dome of the mosque. And why even 1949? One can stretch the line all the way back to 1528 when the mosque was constructed over other religious structures.

The abuse of historical reasoning is one of the features of secular politics in India. As the proceedings in the court showed, the report of the Archaeological Survey of India (ASI)—the organisation asked by the Allahabad High Court to excavate a portion of the Ram Janmabhoomi-Babri Masjid complex—was contested bitterly by historians and archaeologists of a certain persuasion. Ultimately, the court rejected these claims and went by what the ASI said in its report.

These are tough days for secular politics in India. It lost electoral traction in 2014 after a decade of populist spending that was peppered with corruption scandals. Intellectually, it has lost steam as well. Much of the theorising was lazy and was always at odds with what Indians at large understood—tolerance for all faiths. The days after the judgment showed that those who continue to repose faith in the idea, intellectually at least, have not learnt anything and have continued to press on with the same tired arguments. Handing over of the 2.77 acres of land in Ayodhya will not spell doom for Muslims or other minorities in India. Indian law, which bars discrimination on the grounds of religion, is unlikely to be reshaped to discriminate against anyone in future. What will need to change is the old idea of secular politics whereby a political veto could rest in a few hands against the majority in India. To now say that the majority will exact its revenge is an argument of despair. Nothing in Indian history, its laws and traditions suggests that this will happen.

AyodhyaBabri MasjidLord RamaRamjanambhoomiSupreme Court of India