The following article was originally published in the Critical Twenties blog on Oct 2, 2010.
“[A] society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish.”
I count this quote by Judge Learned Hand, an appellate court judge in the United States, as one of the most insightful analyses of the role of courts in political disputes. I have exploited this quotation to the hilt previously, as nothing that I ever want to say in this matter can be so precisely conveyed as this statement does. Today however, having perused the summaries of the opinions in the Babri Masjid title suits, I am happy to disagree with Learned Hand for the first time. India today is a riven society and it is our immaturity as a people which has led to a judicial resolution of what is fundamentally a dispute over faith entangled with a more than necessary dash of politics. Perhaps we should never have gone to the courts in the first place pretending that the dispute was a mere “title suit” as lawyers would have us believe. But given that we did, the decision of the majority of the Allahabad High Court in declaring Hindus and Muslims joint owners of the land, is a welcome step forward in ensuring that the spirit which nurtures India, that of “sarva dharma samannay” or if you prefer its secular avatar, the spirit of accommodation, remains alive and well, and is far from perishing.
First, let me take a closer look at the three opinions. From the summaries made available , it is clear that on the major points of dispute in this matter, there is agreement between Justices Khan and Agarwal, with Justice Sharma dissenting. Justice Khan and Agarwal conclude, albeit for slightly different reasons, that both Hindus and Muslims have been in joint possession of the disputed land. From this premise, they infer joint title since no single party could conclusively prove its title. However a caveat— that the portion under the central dome will be allotted to the Hindus is added; by Justice Agarwal, as it is believed by Hindus to be the birthplace of Lord Ram, by Justice Khan for the same reason, though with the added qualification that this belief has not existed since time immemorial but rather emerged “some decades before 1949”. Both however disagree on the genesis of the masjid at the site. Whereas Justice Khan is unequivocal that the mosque was built by or under the instructions of Babar, and though built over the ruins of a temple, was not constructed after a demolition of the same, Justice Agarwal held that it cannot be conclusively proved that it was built by Babar, but that it was built pursuant to demolition of a non-Islamic religious structure, which he assumes can only mean a Hindu temple. Justice Sharma, the judge dissenting on the merits, makes three key points. First, that the “disputed site” is the birthplace of Lord Ram as believed by Hindus; second, a curious finding whose basis, presumably some aspect of Sharia law unstated in the summary, that the structure which existed for centuries cannot be considered a mosque because it is against the tenets of Islam and third, that it was built after demolishing a Hindu temple which existed on the site, as per the report of the Archaeological Survey of India. These differences aside, all judges were unanimous that the Nirmohi Akhara would have claim to the outer courtyard where the Ram Chabootra and Sita Rasoi are located, which had functioned as a Hindu place for prayer, even when the mosque was in existence. Using these inferences, Justices Khan and Agarwal concluded that the property would be divided into three equal portions, one to the Hindus, one to the Muslims and one to the Nirmohi Akhara, whereas Justice Sharma held that the entire disputed site would henceforth be owned by the Hindus.
As a legal opinion, three aspects of the judgment are particularly striking. First, it is curious that the interpretations accorded by the Justices to historical and archaeological data placed before them, could radically differ. Surely, whether the mosque was built (a) in the 16th Century by Babar or not and (b) after demolishing a temple or not are objective determinations which have one right answer. It would be another matter if the Court held that there was not enough data to conclude one way or the other. But instead, the judges, on the basis of the objective data concluded differently, which strikes me as a little odd. The text of the judgment itself will hopefully be more revealing in this regard.
Second, the minority decision by Justice Sharma, in my opinion, exemplifies all that a judicial decision on a political matter, or at any rate its summary, should not be. It is inadequately reasoned, contains unsupported assertions, and chooses unequivocation over nuance in coming to its conclusions on a sensitive and delicate issue. Moreover, as hinted by the opinion, it delves into matters of religion, holding the masjid against the tenets of Islam. We all know what ensued when a well-meaning effort was made by Justice Chandrachud to interpret Sharia law in Shah Bano; doing so again, that too in a matter as sensitive as this one, was scarcely the wisest course of action for any of the judges to adopt.
Third, the inference of joint title flowing from joint possession is legally valid. Since both the majority judges established that Hindus and Muslims were both in possession of the site, the Hindus offering prayers to the makeshift idols under the central dome and the outer courtyard and the Muslims in the masjid therein, and neither could exclusively prove title, title following possession would be joint. However what is surprising legally, is the order to partition the property and allot a 1/3rd share to each of the parties in possession. Neither is there any basis in the decision as to why the property should be shared in this proportion, nor does the diagram used by the judges suggest that indeed this was the proportion in which the disputed site was held by the Hindus, Muslims and the Nirmohi Akhara. This has however unfortunately given rise to the view that the judges administered a sort of panchayati justice, a view which has gained ground amongst the intelligentsia in the last two days. I have two responses to this argument: first, criticism of this aspect of the judgment should not cloud understanding of the whole judgment- the decision was not only about a division of the disputed site, it was about recognizing the existence of joint possession and joint title which in itself are landmark findings. Focusing only on the proposed partition without paying adequate attention to the other aspects of the order is myopic. Second, insofar as the division of the site itself is concerned, I believe that it draws an optimal balance necessary between clarity and ambiguity necessary for a court decision on this aspect. Had the court merely stopped at its inference of joint title, it would have raised more questions than it answered: which part belongs to whom? How much part do the Muslims have? How can smooth passage into both the Hindu section and the Muslim section be guaranteed? Who will be in charge of the division? A semblance of clarity was necessary to allay these concerns and provide a lead for the ultimate partition which would be negotiated. On the other hand, answering all the questions raised before the Court in black-and-white, which I’m guessing is not the specialty of panchayati justice, and passing a clear final decree in favour of one party, would be contrary to the legal finding of joint possession and more importantly may have been politically inflammatory. One only needs to look at Justice Sharma’s dissenting opinion to realize its potential for communal trouble, had it become the established position of law. Perhaps it wouldn’t be panchayati justice then, it would be majoritarian justice; I’ll leave it to you to decide which is worse.
And this brings me to my two final points. First, it is imperative to realize that the decision in the title suit apart from not being final since an appeal to the Supreme Court is imminent, in no way legitimizes or absolves those who tore down the Babri Masjid in 1992. No court decision in a civilized democracy can ever be a legitimating factor for an act of mob violence and this case is no exception. It is necessary that prosecution of those guilty of razing the mosque be stepped up to ensure that canards of this nature are prevented from spreading. Second, it is equally imperative to recognize that the court was dealing with a matter which was predominantly political and religious. To assume that the judges can immunize themselves entirely from the charged atmosphere of the country while delivering their verdict would be naïve. Equally to criticize the judgment on the basis of a legal nicety- that the 1/3rd division of property was not a prayer in the suit and hence could not have been ordered- would be missing the woods for the trees. The majority judgment is undoubtedly a balancing act; but it is an act which is grounded in the law and departs from it only in the interests of justice to serve the need of the hour. And for serving these needs admirably, it deserves the highest praise.
Mr. Sengupta is Director and Lead Researcher at the Vidhi Centre for Law and Policy Research.