The problems with the Ayodhya verdict
Since the dust has settled a little on the Ayodhya verdict, we bring you some of the problems with the verdict as pointed out by scholars and former judges.
Once upon a time, in fact until 1992, stood a 'structure' called Babri Masjid in the now-disputed land in Ayodhya (erstwhile Faizabad) district of Uttar Pradesh. It had been there for more than 450 years. But it was destroyed on December 6th, in an act of violence by a mob of ‘Kar Sevaks’ who were inspired by the speeches of BJP & VHP leaders.
On November 9th, 2019 a constitution bench of the Supreme Court of India permitted the construction of a temple at the site where Babri Masjid once stood and asked the government to allot a “prominent” and “suitable” five-acre plot for Muslims to construct a mosque in Ayodhya.
In a unanimous judgment, a Bench headed by Chief Justice of India Ranjan Gogoi asked the centre to formulate a scheme within 3 months and set up a trust to manage the property and construct a temple in the disputed 2.77 acres of the land.
Soon after the verdict, the Hindu stakeholders and the ones in favour of a ‘Bhavya Ram Mandir’ at the supposed birthplace of Lord Ram, started celebrating with sweets and chants of ‘Jai Shree Ram’ at the Supreme Court itself. On the other hand, the Muslim stakeholders accepted the decision, but with a certain amount of resignation. Lawyer Zafaryab Jilani, who was a part of the legal team of the Muslim side, said that the verdict “provided neither equity not justice”. While former BJP chief Lal Krishna Advani, who has been named by the CBI as a conspirator in the criminal case of the Babri masjid demolition, said that following this verdict, he stands “vindicated”.
So despite the Prime Minister and the RSS chief asking people not to look at as ‘win or loss’, one side finds the judgment more acceptable than the other does.
Since the verdict, several academics, commentators and former judges have found problems with the judgment. We list some of them for you.
The Constitution question
Retired Supreme Court judge Justice Asok Kumar Ganguly said: “Even if not in 1856-57, but definitely since 1949, namaz was offered there, that is in evidence. So, when our Constitution came into being, namaz was being offered there. A place where namaz is offered, if that place is recognised as a masjid, then the minority community has the right to defend its freedom of religion — a fundamental right guaranteed by the Constitution,”. This highlights how the judgment often overlooks the existence of the mosque at the site for over 450 years.
The idea of ‘space’ in Indian secularism
According to academics Khushdeep Kaur Malhotra & Neelanjan Sircar, beyond merely being a geographical terrain, ‘space’ is an entity produced from multiple social and political experiences, both lived and desired, of multiple entities, such as citizens or governments. Because of India’s unique secularism and the guarantee of constitutional equality, all Indian religions enjoy some measure of ‘spatial equality’. Now they argue that the allocation of land to Muslims at a “prominent place” elsewhere in Ayodhya redefines how space is to be understood in Indian secularism.
“Muslims may be granted public space as long as it does not adulterate Hindu space. Mandir and masjid, and consequently their custodians, are best separated”, they say. Malhotra and Sircar think that through the judgment the Court has generated incentives for further aggressive tactics to “reclaim” Hindu spaces, which can be dangerous.
Dangerous precedence of sanctifying aggression?
Former Supreme Court judge Markandey Katju asks “is India to move forward, or backward?”, describing this judgment as something which feeds to the revanchism that the likes of VHP calls for.
Katju fears that the giving of the disputed site for the construction of the Ram temple sanctifies the act of aggression that was the demolition of Babri Masjid; and it can also set a dangerous precedent for the likes who chanted “Abhi to yeh jhaanki hai, Kashi Mathura baaki hai”, (meaning “This is just the glimpse, we still have Kashi & Mathura left”) threatening a move on Muslim sites in Varanasi and Mathura.
‘Balance of possibilities’
The ‘Conclusion on title’ section of the judgment starts off by saying ‘the court does not decide title on the basis of faith or belief but on the basis of evidence’. Then it goes onto say, “on the balance of probabilities, there is clear evidence to indicate that the worship by the Hindus in the outer courtyard continued unimpeded in spite of the setting up of a grill-brick wall in 1857.” When the judgment speaks about the inner courtyard, it gets interesting.
“The Hindus and the Muslims have contested claims to the offering worship within the three-domed structure in the inner courtyard. The assertion by the Hindus of their entitlement to offer worship inside has been contested by the Muslims.
As regards the inner courtyard, there is evidence on a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century.”
Professor Apoorvanand of Delhi University pits this “Preponderance of probabilities” vs a standing mosque and says whereas Muslims are asked to furnish proof of “exclusive possession”, the Hindu claim is accepted on the basis of “preponderance of probabilities”.