The Daily Star, October 18, 2010

Point Counterpoint

by Praful Bidwai

How should India's Supreme Court treat the appeals certain to be filed before it against the Allahabad High Court judgment on the Babri Masjid issue, which dismisses the Sunni Central Waqf Board's title suit and says the site was the birthplace of Lord Ram? Should the Court strive to reconcile the Vishwa Hindu Parishad with the Waqf Board? Or should it overturn the judgment?

Legality and constitutional principles clearly favour the second option, because Muslims were in undisputed possession of the site until 1992. That will also satisfy the one-eighth of India's people who are Muslim and the many secular Hindus, Sikhs, Christians and others unhappy with the verdict. The crucial distinction here is reason, democracy and legality, central to modern citizenship.

The judgment privileges a particular faith, elevates it to law, and baselessly declares that Ram's birthplace lay beneath the mosque's central dome.

It deprives Muslims of their title to the mosque and surrounding land, which they possessed for centuries. It trifurcates the 2.77-acre plot between Ram Lalla (the infant Ram), Nirmohi Akhara, and the Waqf Board. This may appear even-handed. But, as we see below, it only adds to the verdict's injustice.

While some Muslims feel relieved that the VHP hasn't unleashed celebratory violence, most feel reduced to second-class citizens. Many are worried at the BJP's triumphalist description of the verdict as "a new phase in national integration" (read, forced assimilation of minorities into a majoritarian culture) and Mr L.K. Advani's claim that "the situation no longer is faith versus law, it is faith upheld by law."

The VHP wants the Waqf Board to renounce its portion of the land, so that a grand Ram temple can be built, in return for land elsewhere.

This anti-secular premise assumes that the two communities cannot coexist or worship close to each other. Such one-sided "reconciliation" will compel Muslims into giving up what's rightfully theirs.

Many Muslims apprehend that the VHP will demand the possession of hundreds of other mosques, like those in Kashi and Mathura, on similar grounds.

The Supreme Court must address this by reaffirming the Places of Worship (Special Provisions) Act, 1991, which prohibits any change in the status of religious places.

However, the Court must go further and unravel the judgment's core. The judgment conflates faith and fact. All three judges regard Ram Lalla a juristic person with the right to property. This should be wholly inadmissible in a modern judicial system.

Two judges (Agarwal and Sharma) are certain a temple existed before the masjid, although not when it was constructed or by whom. Justice Sharma asserts Ram is "everywhere" and his birthplace too is a "juristic person."

Justice Agarwal quotes the Rig-Veda to plead indeterminacy of the facticity of Ram and of Divine Creation -- only to affirm that Ram was born at the Babri site.

While asserting that Ram has existed since time immemorial, the judges ignore a 1988 report of the Archaeological Survey of India (ASI), which found no sign of human habitation in Ayodhya before 2000 BC. They hold that Ram is a historical person -- because Hindus believe so. In fact, they admit and decide a suit filed by Ram, "represented" by a "close friend" and former judge.

All this even goes beyond the BJP's laughably irrational position that whether Ram was born at the site or not is irrelevant; what matters is people's faith that he was.

Justice Sighbatullah Khan takes the December 1949 smuggling in of Hindu idols to the mosque as evidence of Hindu-Muslim "joint possession" and the basis of dividing the property in the crude way typical of village panchayats. He thus legalises a patently illegal act.

The judgment ignores the parties' rights and apportions land based on their relative strength or power. But the law and a modern judiciary must treat all citizens irrespective of their strength as equal.

The judgment relies on a BJP-commissioned 2003 ASI report, based on excavation at the site -- itself a questionable exercise. Archaeological excavation is done by layers, to identify different periods by the discovery of pottery, etc.

This cannot produce reliable results if the mounds under examination have been dug up -- as happened at the Babri site after 1992.

The 2003 excavation finds were animal bones, burnt-brick powder and lime mortar typical of medieval Islamic construction, and pillars belonging to a much earlier period than 1528.

The judgment accepts the Babri demolition as an accomplished fact, and legitimises it and the following violence. This cannot be excused on the plea that the Court was only deciding a title suit and not the demolition's legality; if the mosque were still standing, the case wouldn't have taken this form. Yet, the judges were deciding petitions filed before the demolition.

This violates all logic and rationality. Former Uttar Pradesh Chief Minister Kalyan Singh was dismissed for colluding in the demolition and thus violating the Constitutional tenet of secularism.

The Supreme Court upheld his dismissal in 1994, thus treating the demolition as illegal and unconstitutional. The judgment also violates this principle established by the Court.

The judgment follows the "PN Oak School of History," fashioned by a semi-literate bigot, who believed that India's great Islamic monuments were all Hindu temples -- including the Taj Mahal!

These charlatans believe that Indians in the Vedic Ages had manufactured airplanes and nuclear weapons. This shows how intellectually corrupted and communally compromised India's higher judiciary has become.

The Supreme Court must follow the most rigorous Constitutional-jurisprudential discipline in overturning the judgment and spelling out that the rights of Muslims cannot be allowed to be gutted by equating faith with fact, and privileging one religion.

The Allahabad judgment disempowers India's largest religious minority. This will cause strife and discontent rooted in rightful anger at its illegality and irrationality. India can afford neither communal biases in the judiciary and terrible abuse of law nor large-scale popular disaffection if it is to survive as a democracy.

Praful Bidwai is an eminent Indian columnist.