The law of the land, with all its faults

Constitutional Scholar Mark Tushnet famously said – “The Constitution matters because it provides a structure for our politics. It’s politics, not “the Constitution,” that is the ultimate – and sometimes the proximate – source for whatever protection we have for our fundamental rights.”

An accurate reading of the Ayodhya verdict is possible only when it is understood politically rather than legally.

The judgement satisfies the majoritarian impulses. Though the Supreme Court (SC) opined that the demolition of the Babri Masjid was an illegal action, its logical consequence, i.e. reconstruction of the mosque did not follow. On the other hand, the Court directed the construction of the temple. The court tried to keep the litigants away from the process and a direction was issued to the Centre. For the Muslims, the Court wanted to give solace, by way of allotment of land. It was a balancing act, at least according to the Court.

India is an amalgam of faiths and practices. Even materialism and Buddhism have evolved in the country. Religions from abroad found their way to the country’s cultural pluralism. The debates in the Constituent Assembly relied on these social and historical realities and thereby formulated the tenants of India’s secularism. It is an ideology of the Constitution. It cannot permit the demolition of any religious structure by an aggressive and fanatic mob. Thus, as held by the top court, Babri Masjid demolition was clearly a criminal act. No one can ever be proud of it.

Incidentally, if the demolition was illegal, the duty of the government would be to restore the status quo ante. For that, the constitutional court would have had to take a counter-majoritarian posture. The court as well as the Constitution works in concrete political situations. No sane analysis of the verdict can ignore political ground realities which can solidly impact the interpretive and deliberative process in the judicial process. Every legal process would be essentially political, at least in the constitutional sense.

After the Masjid was demolished in 1992, three state governments – Madhya Pradesh, Rajasthan, Himachal Pradesh – were dissolved. In S R Bommai, (1994) the Supreme Court found fault with the action of the governments in using state machinaries for aiding the karsevaks who demolished the Masjid. It was in Bommai that the court said that secularism is a basic feature of the constitution. It explained:

“Making of a nation State involves increasing secularisation of society and culture. Secularism operates as a bridge to cross over from tradition to modernity. The Indian State opted this path for universal tolerance due to its historical and cultural background and multi-religious faiths”.

We, as a society failed to uphold secularism as a socio-political value. As such, it is no wonder that the Court had to resort to a weak reconciliatory act. The verdict is thoroughly unsatisfactory. The question, however, is do we deserve better? The point now is to preserve and uphold the people’s fraternity and inter-religious harmony and to rescue the nation from further damage. The judgement needs to be accepted and honoured, for larger public good. It is the law of the land, with all its faults.

(Kaleeswaram Raj is a lawyer in the Supreme Court of India.)

The views expressed above are the author’s own. They do not necessarily reflect the views of DH.

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