In the history of the Indian Republic, 6th December 1992, is a defining date.
For some of
us, it marked a fatal attack on the idea of India. For others it is the beginning of the birth
of a New India. Some of those (now) facing trial for the demolition, had then expressed
regret, calling it the saddest day of their lives.
Today in 2018, those directly responsible for the demolition have held and continue to
hold high office. However they are now faced with demands of ‘fringe hindutva groups’
for immediate construction of a temple, at the very spot of the demolition . Previous
governments were circumspect on the issue. However, the present dispensation has
responded to demands for construction of a temple, by contemplating an ordinance to
facilitate the construction of a temple. Such an ordinance, is simply not possible legally
and is unlikely to survive judicial scrutiny. This is because a law had already been made
on the same subject and has been held to be partially unconstitutional.
The Supreme Court’s Judgment in Ismail Faruqui’s Case
Shortly after 6th December 1992, the Union Government promulgated a law to acquire
the disputed areas. That law was challenged in the Supreme Court. At the same time, a
presidential reference was also made, querying the court: “Whether a Hindu temple or
any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-
Babri Masjid (including the premises of the inner and outer courtyards of such structure)
in the area on which the structure stood?”
The Supreme Court by a majority of 3:2 upheld the validity of the law, but struck down a
section of it. The courtroom returned the factual reference unanswered. The Court’s 1994
ruling, consequently revived civil suits (from the 1950s and 1960s) claiming title over
the land . These suits were sent back to the Allahabad High Court for adjudication, with
directions that the status quo as of Jan. 07, 1993, be maintained. The Central Government
was appointed a “statutory receiver” of the disputed land till the resolution of the
disputes. It was directed to maintain status quo of the land, and deliver it to the party
found entitled to it, at the end of Court proceedings.
In September, 2010, the Allahabad High Court delivered its verdict in the title suits. The
bench declared that there would be a three-way division of the land between the Sunni
Waqf Board, the Nirmohi Akhara, and the guardian of the deity “Ram Lalla.” As
expected, the verdict didn’t satisfy any party. Appeals were filed before the Supreme
Court and are all pending adjudication.
The Illegality of the Ordinance
The legality of an ordinance allowing for the construction of a temple, in a secular state is
dubious. It is also not clear what the proposed ordinance will say. In order to allow the
construction of a temple, it will have to nullify the provisions of the Acquisition of
Certain Area at Ayodhya Act, 1993 and put an end to proceedings before the Supreme
Court. The latter course is impermissible.
In the Faruqui case, the Supreme Court had struck down S. 4(3) of the 1993 Act which
abated (put an end to) all pending title suits and proceedings. The court ruled that it was
unconstitutional to take away a judicial remedy. Thus, any ordinance that will block one
side, (the Muslims) from access to adjudication, while perpetuating the status quo as far
as demolition is concerned is likely to be held unconstitutional.
The proposed Ordinance will also have to ‘overrule’ the judgment of the Supreme
Court (1994) and the Allahabad High Court (2010). It is not difficult to say that such an
ordinance will most likely be held I llegal. Parliament cannot sit in judgment over a
decision of the court. In the case of Cauvery Water Disputes Tribunal, a constitution
bench of the court held that it was open to change the law in general by changing the
basis of a Judgment. However, it was not permissible to ‘set aside an individual decision
between parties and thus affect their rights and liabilities alone. The court held that
allowing such a course would lead to ‘lawlessness and anarchy.’
The Possible Solution
Thus, there are no easy solutions to the Ayodhya conundrum. Any Judgment by the Court
is likely to exacerbate matters. If the title is vested in the Hindu side, it may well be seen
as another instance of an organ of state succumbing to majoritarianism. If the title is
vested in the Muslim side, it is unlikely that the mosque can be rebuilt without major
repercussions on the ground. All told, a final judicial verdict either way will not result in
a solution, but is more likely to deepen existing fissures in a multicultural society.
A possible solution however, lies in the Court’s judgment in Ismail Faruqui. The Court
therein had ‘wondered’ why the dispute could not be resolved amicably. It observed:
“This is a matter suited essentially to resolution by negotiations which does not end in a
winner and a loser while adjudication leads to that end. It is in the national interest that
there is no loser at the end of the process adopted for resolution of the dispute so that the
final outcome does not leave behind any rancour in anyone. This can be achieved by a
negotiated solution on the basis of which a decree can be obtained in terms of such
solution in these suits. Unless a solution is found which leaves everyone happy, that
cannot be the beginning for continued harmony between "we the people of India".”
