While listening to the year-end interview of the Chief Justice of India Dhananjay Y. Chandrachud, I was reminded of a lesson learned long ago: being eloquent does not mean that you are an honest speaker.
Oratory is an art and one can be an expert in it, but is the orator speaking the truth or speaking honestly? That’s why I often warn my students about the dangers of being a ‘debater’. There is no education on the ethics of speech in debating in our schools. A speaker is taught to be able to argue for and against an issue with equal eloquence. Which side you are on, is not important.
But the side is important. Clever speakers choose sides or gather arguments for a given side. They cannot absolve themselves of the responsibility of what they say by claiming that the stand was not theirs, their job was only to gather arguments to prove it right. We know that they have chosen their side. The debater gets away by calling it an inevitability of his profession. He often does not take responsibility for what he says, which is his action.
We saw CJI Chandrachud answering difficult questions with ease. There were questions related to the judgement, he was part of, to build a Ram Temple on the land of the demolished Babri Masjid in Ayodhya. A critical question was why the judge who wrote the decision chose to not put his authorship on the order, as is the custom. In response to this, the Chief Justice said that it was a unanimous decision of the entire bench, hence the bench decided not to give the name of the person who wrote it. It was the decision of the court, hence no need for the name of the person who voices the bench. But his explanation does not hold because this is not and has not been the tradition of the court.
EXCLUSIVE | VIDEO: “Supreme Court judgement on Ram Janmabhoomi was the judgement of the court, not any individual. So the author of the judgement was not named. It was a case of long conflict and diverse viewpoints,” Chief Justice of India DY Chandrachud tells @PTI_News on… pic.twitter.com/35820C1DOp
Advertisement— Press Trust of India (@PTI_News) January 1, 2024
One reason for the author not giving his name may be modesty. Second, simple cowardice. We know from previous examples that you cannot often accuse justices of humility. The satisfaction of settling such a vexed matter of historical importance in a just way can be imagined. What could be the reason for restraining the temptation of being known as the author of such a monumental judgement? Or did our judges know what they were doing was justifying and rewarding an unjust act and did not want to take credit for that? At the very least, it tells us that there is still some shame left in our elite!
Is this because the decision, as Gautam Bhatia and Suhrith Parthasarathy wrote, was an example of ‘Matsya Nyaya’? Analysing this decision, jurists said that it is based on the principle of ‘the strong shall have the right and the weak shall have to suffer’. It has been noted after analysing the order that the court created two unequal sides in this case and made Hindus the stronger side. Even when they had no case, they would have to be given more weight than the Muslims.
The court did it in a very creative way. First, it declared that all of the 2.77 acres of land on which the Babri Mosque stood is one indivisible property. Then it divided it into two parts.
One, the inner part which was being used for a long time by the Muslims.
Second, the outer part, which was separated from the inner part by a railing after Hindus committed violence and started praying there.
Since the Hindus had been laying claim to the inner part of the mosque also for a long time, including through acts of violence, the court held that there was merit in their claim on that portion of the land. Even when Muslims had been using it continuously, the consistent insistence of Hindus for its ownership made the site disputed. But since the Muslims did not insist like the Hindus for the ownership of the outer part of the mosque which was taken over by the Hindus, the court held that they were not that interested in that part. It has been pointed out that this is factually wrong. Muslims did keep registering their protest from time to time even if they did not do it forcefully, that is violently, as Hindus had been doing. Does it mean that the outer part, which again was only a part of the whole, is beyond any dispute a Hindu property as the court held?
The demolition of the Babri Masjid in 1992. Photo: Sanjay Sharma/INDIAPIX NETWORK
It was a funny and dangerous argument that since the Hindus kept offering worship with their faces turned towards the interior of the mosque, they had some right over it. On the other hand, Muslims were not praying looking towards the outer side. That meant that they could not claim it. It has been pointed out that Muslims could not have kept their faces turned towards the outer side as they pray with their faces turned towards Kaaba. Is this how you create rights of possession? I remember a jurist friend chuckling that if this argument is taken to its logical conclusion, all the properties lying between a praying Muslim and the Kaaba would have to be surrendered to him!
The court, with its arguments, created two unequal parties and gave more weight to Hindus than Muslims. Despite accepting that smuggling Hindu idols into a mosque in 1949 and demolishing the mosque on December 6, 1992 were criminal acts, the court handed over the land to those who had committed these crimes. But if we follow the logic of the court, these two crimes should also be considered as examples of Hindus’ deep interest in the mosque. Through these, Hindus were trying to prove that they loved this place so much that they could commit crimes repeatedly to annex it. The court was impressed by the Hindus’ commitment to the mosque land and decided that their claim was strong.
Thinking about it at this moment, I wonder if Israel should ask our CJI to argue its case before the International Court of Justice to prove that its violence is in fact the demonstration of its love for the land, and since it has never ceased its violence, it shows that it is deeply interested in it and the land of Palestine should be given to Israel as it has proven its rights of possession, and the Palestinians should be given an alternative piece of land to build themselves as a nation. The five-acre justice!
Along with this, despite repeatedly saying that it was not giving its decision on the basis of faith and belief of any community, ultimately it decided on the basis of a manufactured faith of Hindus. The faith is that this land is the birthplace of Ram. The weight of this faith was considered greater than the fact that there was a living mosque there and Muslims were worshipping in it.
The court wanted us to believe that the court was driven by the pious intent of creating peace and tranquillity in the country. If it means appeasing the strong who can keep committing crime and violence, one should do it by manufacturing honourable arguments for his dominance.
Justice Chandrachud said that the case was very old, long and complicated and he was satisfied that he had brought it to a conclusion. But the question remains whether this decision was able to do justice. And did it calm the turbulent waters?
The photograph of the five judges locking their hands and celebrating their act that very night tells you about their minds. It will remain the most obnoxious image of our judiciary. What should have been a sombre moment of introspection for them was turned into a celebration!
They wanted, even at the cost of justice, peace for the nation. What about that? We know the answer. After handing over the land of Babri Masjid to Ram’s parents, Justice Chandrachud, again deploying his creativity, has made the Gyanvapi Masjid a disputed site. He did it by inventing a jurisprudence of curiosity. He argued that someone might be genuinely curious to know what was inside the mosque. It is their right to satisfy this curiosity. Hence, the Gyanvapi mosque could be surveyed to know what was inside it. It did not mean changing its title. But the mosque has already, for all practical purposes, lost a part of its premises after Hindus started claiming that they had found a shivling during the survey. Justice Chandrachud was inclined to name the object a shivling. It was the sober, persistent argument of the lawyer of the masjid committee which forced Justice Chandrachud to desist from doing it. But that part, which is the Wazoo Khana of the mosque, was sealed and is now out of bounds for worshippers.
Also read: The Kashi Vishwanath-Gyanvapi Equation: A Parable for People, Power, Politics
So Justice Chandrachud, taking the cover of the principle of complete justice and turning justice on its head for peace and tranquillity in the case of Babri Masjid, has also ensured that the cauldron remains boiling forever. His order in the Gyanvapi mosque has now opened a floodgate for more such claims. The BJP or the RSS could not have imagined that its cause would be made to look so just by the judiciary and it would not need to take recourse to violence to achieve that.
Justice Chandrachud will also get credit for decisively shaking the basic structure of the Constitution and nation. It was widely expected that his bench would hold the abrogation of Article 370 constitutional, but he went a mile further. His bench also decided that if the federal government wants, it can break any state and carve out a part of it as a Union Territory. This single decision has made the states slaves to the will of the Centre. And India, a Union of States, no longer exists!
Justice Chandrachud is a skilled orator and all his statements suit the mood of contemporary politics. He is always politically correct in his out of court orations. He sounds pleasant. But he has not been appointed the chief orator of this country. His job is to do justice. Which normally should inconvenience the strong. But we have seen him and his colleagues asking all of us to trust the words of the solicitor general. The same SG who had said that there were no people on the roads during the Covid pandemic and that the court had closed the case. People were dropping dead on the roads. But the court did not have eyes and the state had its ears. He wants people to trust the decision makers. But the conduct of decision makers does not inspire confidence. He cannot use this admonition to answer a just question as to why the bail petitions of all the critics of this government are being sent to a special judge. The answer cannot be that he had to be trusted.
The Chief Justice can sing Christmas carols. That will get him applause. Not long ago, in one of his lectures, he had said that in times of majoritarianism, the responsibility of the highest court increases. At that time, we did not know that this meant that the court would interpret the Constitution in such a way that majoritarianism would start appearing constitutional. Does it not lead to peace after all?
Apoorvanand is an academic and an author.
