Wednesday, May 28, 2008

Did the Court Ask, What is Mohd Aslam�s Locus Standi?

Arun Shourie

"What is the VHP? Whom does it represent? What is its locus standi?", the Supreme Court asked the other day -- and it seemed to have done so in a tone that triggered much delight among secularists.

��A strange question,�� the PM remarked in the Rajya Sabha. A member was up and shouting, actually several secular ones were, interrupting the Prime Minister. Who are the VHP?... They don�t represent the Hindus... They will put a bullet through me..., so what?... The members seemed quite beside themselves. If the mere mention of its name causes so much reaction, the PM observed, then it certainly has locus standi.

In matters of religion and faith, standing is not acquired by winning elections, he said. It depends on the esteem in which people come to hold one...

A telling answer in itself. And it left the critics non-plussed.

Another side to the question that had fallen from the Bench too would have struck you. The Bench did not ask, as the Constitution Bench had not asked, ��Who is Mohammed Aslam, alias �Bhure�? Whom does he represent? What is his locus standi?�� It did not ask, ��What is the Babri Masjid Action Committee? Whom does it represent? What is its locus standi?�� It did not ask, ��What is the �All India Muslim Law Board�? Whom does it represent? What is its locus standi?�� How is it that doubt assailed it only in regard to the Vishwa Hindu Parishad?

To put the matter at the least, the Bench could have looked up the Supreme Court�s own judgement in the Ayodhya case itself! ��The movement to construct a Ram temple at the site of the disputed structure gathered momentum in recent years which became a matter of great controversy and a source of tension,�� the judgement quoted the (Narasimha Rao) Government�s ��White Paper�� as saying. ��This led to several parleys the details of which are not very material for the present purpose. These parleys involving the Vishwa Hindu Parishad (VHP) and the All India Babri Masjid Action Committee (AIBMAC), however failed to resolve the dispute...�� Again, ��At the centre of the Ram Janma Bhumi - Babari Masjid dispute is the demand voiced by the Vishwa Hindu Parishad (VHP) and its allied organisations for the restoration of a site said to be the birthplace of Sri Ram in Ayodhya...��

Yet again, ��The VHP and its allied organisations base their demand on the assertion that...�� And yet again, ��The demand of the VHP has found support from the Bhartiya Janata Party...�� And yet again, ��It was also stated by certain Muslim leaders that if these assertions were proved, the Muslims would voluntarily hand over the disputed shrine to the Hindus. Naturally, this became the central issue in the negotiations between the VHP and the AIBMAC.��

But suddenly, What is the VHP? Who does it represent? What is its locus standi?

In any event, that allusion to ��parleys�� holds a lesson we will do well to remember. One of the best things Mr Chandrashekhar did during his brief Prime Ministership was to get the two sides to agree that the only way to make progress was to exchange evidence on the matter. The two sides started meeting and exchanging documents and written arguments. The Babri Masjid Action Committee was guided by a clutch of Marxist historians -- actually, ��guided by�� is not quite right: it seemed just the front for these ��eminent historians��. The latter used the offices and facilities of the ICHR that they then controlled to prepare the AIBMAC submissions -- a fact that led the then Member Secretary to resign from his post.

The ��evidence�� that the Babri Masjid group submitted was no evidence at all. It was just a miscellaneous pile -- much of it puerile: that Rama was a King of Egypt, that he was born in Afghanistan, and the rest!

The VHP marshalled an array of evidence from archaeological sources, from historical records, from literary sources. That was the end of the ��parleys��! Realising that they could produce nothing to match what the VHP had submitted, the Marxist historians and the AIBMAC gentry just stopped attending the meetings. And it was this withdrawal, and the consequential death of the talks that Mr Chandrashekhar had initiated, as much as anything else that triggered the chain of events that led ultimately to the destruction of the mosque.

I did not doubt for a moment that the new efforts of the Shankaracharya of Kanchi would meet exactly the same fate. And for good reason. In one of the letters that he included in his 'A Bunch of Old Letters', Pandit Nehru used a phrase about Jinnah that describes this bunch, and its invariable device to the dot: ��Mr Jinnah�s permanently negative answer,�� Panditji wrote. This is the singular negotiating tactic of such individuals: just go on rejecting every formula that the other fellow brings up.

And the tragedy is -- the self-inflicted tragedy is -- that there always are persons, groups, powers that insist that the onus of producing the next formula, some formula which will incorporate an even greater concession to the other fellow is on us. And in the end we give in to this insistence. The power and groups that keep insisting that we go on producing new formulae: the British on the question of partition, the host of interlocutors on Kashmir, the secularists on the Ram Janmabhumi.

And the ones who merely keep deploying the ��permanently negative answer��: Jinnah kept rejecting every formula on partition; Pakistan keeps rejecting every formula on Kashmir; the Babri Masjid votaries keep, and will keep rejecting every formula on the Janmabhumi.

And the infuriating part is that the advice to engage in a dialogue is always directed at us -- the Congress on the question of partition, India on Kashmir, the Hindus on the Janmabhumi! It is because of this unbroken, unvarying pattern of 75 years that the new Interim Order of the Supreme Court fills me with foreboding -- doubly so.

The first concerns dialogue, negotiations. In its 1994 judgement the Supreme Court also had expressed the same pious faith: ��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,�� the Court said. ��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 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 same touching faith! Doomed to the same outcome.

But the least that this route requires to succeed is that the Executive has leeway, that it has a wide enough field over which it can bring the contenders closer. The Supreme Court in its 1994 judgement had left this space -- recall, for instance, the passages regarding the undisputed area. The Interim Order has snatched that space away completely. And taken into the judicial lap what the Constitution Bench had realised was not well suited for resolution through judicial adjudication.

The other omen is of an even darker hue. What the Supreme Court had held about the status quo being maintained only on the disputed site, what the Court had said about it being not just permissible but desirable that the undisputed area be handed back to its Hindu owners -- all this was important, but of far lesser importance than another feature of that judgement, a feature that was of foundational significance.

An argument had been advanced on behalf of Muslims -- the Court remarked that it had been advanced with ��vehemence��. This was the familiar assertion that once a mosque has been built on a piece of land, irrespective of who owned the plot earlier, irrespective of what might have stood on it earlier, irrespective of whether the structure had subsequently been used or not, the land would always be a possession of Muslims.

It was contended that this was the position under Muslim Law, and therefore this is what must hold in this case too -- whether a temple stood on the land earlier, whether namaz had been offered at the site since 1949 etc., all these were essentially irrelevant questions. And that the acquisition of the site by the Government for determining its true owners was invalid on this ground alone: secular laws like the Statute of Limitations, the laws regarding acquisition of property by the State etc., do not apply at all to either a mosque or the site on which it was once built, it was argued on behalf of Muslims.

The Supreme Court dealt in detail with this question -- because of the vehemence with which this argument had been advanced, it said. In doing so it laid down three vital principles. First, it held that what will apply in India is not some abstraction called Mahomedan Law, but ��Mahomedan law as approved by Indian courts��.

Second, it reiterated what Indian courts had from the British period consistently held in regard to the status of a mosque: namely, that a mosque is just another immovable property; that, therefore, the Statute of Limitations applies to it exactly as it does to any other immovable property, that the sovereign power of the State to acquire the structure or the site on which it stands is as unlimited as it is in relation to any other piece of property.

Third, the Court held that even if a structure or practice is manifestly associated with a religion it shall not be immune from State action under the freedom of religion guaranteed by our Constitution -- unless it is a practice essential to that religion. This vital distinction will come home to us when we think of the contrast between, say, the Kaba in Mecca and the mosque next door, between offering namaz and killing cows. The result was immediate. Citing judgements from even the British period, the Court established how, for instance, a mosque could be lost by adverse possession. It showed how even by those judgements it was subject to the Statute of Limitations. It established how ��A practice may be a religious practice but not an essential and integral part of practice of that religion.��

These principles were of foundational importance. They were essential correctives to what had come to pass in the name of secularism. They gave hope that the excesses that had come to be perpetrated in the name of religion could indeed be rolled back through the courts -- for instance, the insistence that namaz shall be offered on public roads, the insistence that slaughtering cows was a fundamental right that flowed from the freedom of religion guaranteed by the Constitution.

That is why not so much the Interim Order but the remarks that fell from the Bench during this hearing are so ominous. If that is the mood of the Court, these vital principles will themselves be diluted in the days ahead.

Dialogue and negotiations blocked each time by that ��permanently negative answer��. And the Courts in the mood of which the Bench has given us a glimpse. What conclusion will the Hindus draw?

But they must abide by the verdict of the courts, the secularists say. Will some Hindu in turn not one day tabulate how many times the Constitution has been amended precisely to overturn verdicts of the Supreme Court, and throw the number back at those who keep hurling this counsel at him, and him alone?

Actually, why wait for that anonymous Hindu, dear reader, why not pre-empt him? Study the 90-odd amendments yourself, and answer: how many of them have been enacted to reverse judgements of the Supreme Court?

Indian Express
March 18, 2002

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