Tuesday, May 10, 2011

A strange order

I'm back to blogging after a hectic month and more. The proximate stimulus for my return is the recent Supreme Court interim judgement on the Babri Masjid case.  The Supreme Court has wisely described the Allahabad High Court judgement of September 2010 as "a strange order".  Blogging about it here on the day after that judgement, I had wondered if my late father -- who had once been a high court judge -- might have raised the following questions about it:

"Should an aggressive action lead to benefit for the aggressor in the form of a compromise? Are religious groupings the appropriate beneficiaries of a title suit when public interest is involved? And can the law opine on the birthplace of a god?"

The learned Supreme Court judges have so far not addressed these questions. All they've found strange about the High Court judgement is its idea of dividing the land into three portions: one to the Nirmohi Akhara (a Hindu group believing in no attachments, other than -- strangely -- to a piece of land where the Babri Masjid stood), one to the Waqf Board (an organisation constituted by Parliament to be in charge of Muslim holy places) and one to Lord Ram himself, in his current reincarnation as a "shapeless and formless" legal entity.

While so many people welcomed it as a "compromise", I had found the Allahabad High Court judgement bizarre from a legal and ethical perspective. The mosque was toppled in 1992 before the very eyes of the nation, following a vicious campaign led by L.K. Advani that collaterally damaged the fabric of this country and propelled the BJP to power. One would expect a judgement on this politically staged catastrophe to redress such a major legal violation, that took place in living memory, by restoring the status quo ante (or, given the warlike nature of the supposedly devout parties concerned, perhaps the status quo ante bellum).

Nothing of the sort was evident in the Allahabad High Court judgement, which on the contrary sought to twist religious sentiment into legal fact and thereby debase India to the level of the many nut-case theocracies  populating the planet. (If you think I'm overstating the issue, please compare the Wikipedia definition of "theocracy": "a form of government in which a state is understood as governed by immediate divine guidance", with Justice Dharam Veer Sharma's description of the disputed land as "It is personified as the spirit of divine worshipped as birthplace of Lord Rama as a child.")

It's now up to the Supreme Court to remedy this. I have always had considerable faith in this court (even though it famously bent just a little to please Indira Gandhi) and I've always believed they would see through the fallacious and apparently motivated Allahabad High Court judgement. Yesterday they took the tiny step of describing the judgement as "strange" but a larger step will come. If, as I expect, they will attempt in some way to restore the status quo ante with respect to December 1992, the land will essentially go back to the Sunni Waqf Board. Then the BJP, which has actually welcomed the recent Supreme Court observation, will find itself all confused and lost, and will presumably have to save face by staging another agitation. Or even another vicious campaign (it's easy to guess who would lead it this time). Will India descend into the loony bin of religious fundamentalism all over again? Stay tuned.


Neelima said...

Regardless of all legal niceties and righting of historic wrongs, I think the best judgement would presumably be one that closes the issue once and for all. As for what that judgement would be, is anybody's guess. However I doubt that restoration of the pre-December 6 status quo would do this.

Sunil Mukhi said...

Posted on behalf of vbalki, who was encountering some problem with the Comments interface:

"It is indeed heartening that the SC has acted responsibly. This bears out the faith and hope of every thinking citizen in the existence of a true court
of last appeal where the principles of justice will be upheld without fear
or favour, no matter what sort of hiccups occur at lower levels. On the other hand, isn't this faith rather naive, even if it is touching, given the kind of people involved in recent times? We have a former CJI who is involved in charges of nepotism and is busy explaining shady dealings by
close relatives. We have anothet former CJI, possibly senile by now, who goes on record saying that his judgments were merely written by him, the contents having been dictated to him by some "superior power" in an orange
robe whose other occupation seems to have been the production of watches out of thin air. One would have expected the judgments of a CJI to have been dictated by the law of the land and its Constitution, rather than anything else!"

Sunil Mukhi said...

@neelima: I have to disagree with you. The best judgement would be one that upholds the letter and spirit of the law. If any other judgement "would have" been best, it can only mean the letter and/or spirit of our laws need to be changed, which should be done independently and following established parliamentary procedures.

A judgement cannot and should not attempt to "close the issue once and for all". That path will lead to the unfettered persecution of every weak and helpless person by bullies, since bullies can always keep an issue open until it is closed in their favour.

Neelima said...

Sunil, bullies don't need the law courts to close an issue. They can do it themselves, by drastic means. Also, the only meek party in this case is Lord Ram, who, regardless of his judicial status, is a pawn in this case. My point is that what this case needs is closure so that all parties, including the nation, can move on. The Ramjanmabhoomi dispute is really not about a legal issue. It is about mistrust and grievances, both real, and imagined. The solution, if any, may lie outside the courts of law.

vbalki said...

I think all of us, deep in our hearts, want the SC to be an infallible court of last resort where sense and justice will prevail, in spite of the flip-flops exhibited by lower courts from time to time. But even this hope may be wishful thinking, on occasion. We have an ex-CJI who is enmeshed in accusations of nepotism and shady deals involving his close relatives. Another ex-CJI openly says his judgments were dictated by a god-man renowned for producing watches, rings and other baubles out of thin air. (One would normally expect the judgments of a CJI to be dictated by the Constitution of the country and the law of the land.) These are not exactly confidence-inspiring signs. The high court level of the judiciary is even more embroiled in controversy and charges of impropriety.
Unfortunately, one cannot help wondering about the extent to which the SC's stance in the present instance has been dictated by politics, and the extent to which it is based on the principles of justice and the law.