Amicable resolution the only way to end this

In the history of the Indian Republic, December 6, 1992, is a defining date. For some of us, it marked a fatal attack on the idea of India. For others, it was 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 Babri Masjid 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.

Ismail Faruqui Case

Shortly after December 6, 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 60s) 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 January 7, 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 Sept 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.

Ordinance? Illegal

The legality of an ordinance espousing 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 the proceedings before the Supreme Court. The latter course is impermissible.

In the Faruqui case, the Supreme Court had struck down Section 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 judgement 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 illegal. Parliament cannot sit in judgement over a decision of the court. In the case of the 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 judgement. 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”.

Possible Solution

Thus, there are no easy solutions to the Ayodhya conundrum. Any judgement by the court is likely to exacerbate matters. If the title is vested with 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 judgement in the Ismail Faruqui case. 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 a 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’.”

(The writer is a Supreme Court lawyer)