Justice Bending To Majoritarian ism

High-minded secular rhetoric doesn’t blunt majoritarian edge of ruling

November 10, 2019, 2:45 AM IST Aakar Patel in Aakarvani | India | TOI

A few days ago, on November 4, the Indian Supreme Court passed an unusual order. Justices Deepak Gupta and Aniruddha Bose were hearing the criminal appeal No 1638 of 2019 (Surekha Nitin Kapse against the State of Maharashtra — the specifics of the case are unknown).

The justices said: “On perusal of the judgment we find it is unintelligible and we could not decipher what has been decided by the High Court. We accordingly set aside the order and remit the matter to the High Court. We request the High Court to pass an order which we can understand.”

Let us turn to the Babri mosque judgment. Offering all the qualifications that are expected from plebeians (“I have full faith in the judiciary!” “I have highest respect for the law” etc) I would like to ask the same of the bench that passed an order that to me appears unintelligible and undecipherable. It may be too much however to request the judges to set the thing aside. But perhaps if we go through it together perhaps we might find the sense in it. Ready? Here goes.

Before delivering their judgment, the judges first sent down homilies. In their words: “For a case replete with references to archaeological foundations, we must remember that it is the law which provides the edifice upon which our multicultural society rests…  At the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law. Under our Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance are both subject to the law and equal before the law. The Constitution does not make a distinction between the faith and belief of one religion and another. All forms of belief, worship and prayer are equal.”

That is clear. Next, the judges said that “the dispute is over immovable property. The court does not decide title on the basis of faith or belief but on the basis of evidence.” The court said that “between 22/23 December 1949, the mosque was desecrated by the installation of Hindu idols. The ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship.”

That is also clear. Next, they say that “during the pendency of the suits, the entire structure of the mosque was brought down in a calculated act of destroying a place of public worship. The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.”

Again all this is pretty straightforward. Then the court says that “dividing the land will not subserve the interest of either of the parties or secure a lasting sense of peace and tranquillity.” Also that “allotment of land to the Muslims is necessary because though the Muslims were dispossessed upon the desecration of the mosque on 22/23 December 1949 which was ultimately destroyed on 6 December 1992. There was no abandonment of the mosque by the Muslims.”

More homilies follow: “This Court in the exercise of its powers under Article 142 of the Constitution must ensure that a wrong committed must be remedied. Justice would not prevail if the Court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law. The Constitution postulates the equality of all faiths. Tolerance and mutual co-existence nourish the secular commitment of our nation and its people.” etc etc.

And with all this in mind, the court then concludes that “on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims.”
Here I am lost. And my bafflement continues as I read further into the text. What is our Supreme Court saying? That desecration and vandalism must be rewarded because India is a secular country? Or am I getting it wrong? I am unable to figure out the logic and the jurisprudence that links the findings of the court and its conclusions.

India’s Supreme Court has taken the ultimatum made by LK Advani and other Hindutva leaders to Muslims 30 years ago — accept land elsewhere and get your mosque out of here else we will break it down — and legitimised it. But they have done so with kinder words.
The high-minded secular rhetoric of the judgement is dislocated from the majoritarian edge in its ruling. Homily alone has been given to the Muslim of India in exchange for justice. That is how it appears. Reading it in any other way does not make any sense to me.

DISCLAIMER : Views expressed above are the author's own.

AUTHOR

Aakar Patel

Aakar Patel is a writer and columnist based in Bangalore