By
Aakar Patel
November
10, 2019
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.
Original
Headline: High-minded secular rhetoric doesn’t blunt majoritarian edge of
ruling
Source: The Times of India
URL: http://www.newageislam.com/islam-and-politics/aakar-patel/homily-alone-has-been-given-to-the-muslim-of-india-in-exchange-for-justice--that-is-how-it-appears/d/120238