Five Acres in Lieu of Citizenship

The Muslims of India approached the Supreme Court for affirmation of their citizenship. Instead, they were given five acres of land.

In their verdict on the Ayodhya dispute, the bench recognised “it is necessary to provide restitution to the Muslim community for the unlawful destruction of their place of worship.” But in sharp contrast to their lengthy exegesis on other issues – like the indubitability of faith, the archaeological evidence for a temple below the mosque, the way that historical texts must be read – there is absolutely no discussion of what ‘restitution’ means, and more importantly, what it might involve in this specific context.

The end of the 20th century might well have been regarded as an ‘age of restitution’ given the wave of apologies, reparations and truth commissions, like the US government’s reparations to Japanese Americans for internment during WWII, the Australian and Canadian governments’ apology to their native populations, or truth commissions in Guatemala, Peru or South Africa. In all these, as well as in international law, restitution is portrayed as a process of arriving at ‘truth’, ensuring ‘non-repetition’, and thereby effecting some kind of reconciliation, either with the state or with perpetrator communities. The Ayodhya judgment, however, fails miserably on all counts.

Truth? 

Let us imagine, for a moment, that every other record of the Ayodhya dispute except for this judgment disappeared. Drawing on Lon Fuller’s The Case of the Speluncean Explorers, a fictional case which Justice Chandrachud is fond of, let us imagine that a future court of Newbharat in 4300 CE is trying to understand why the country known as the Republic of India self-destructed after 2019 and became the Hindu Rashtra of Bharat. That court would rely on this 2019 judgment for the “preponderance of probabilities,” much like this court, which relying on two surviving accounts of European travellers for its ‘evidence’ that the ‘Hindus’ had continuing use of the premises for worship but ‘Muslims’ did not, awarded title to the ‘Hindus’.

From reading the judgment, we would never know who demolished the Babri masjid in 1992 or how it happened, for the words VHP, BJP, RSS or kar sevaks do not figure in this context at all. In fact, BJP and kar sevak are totally absent, VHP figures once, and RSS twice in the context of the archaeologist SP Gupta over all of the judgment’s 1,045 pages. Nor are we told that the third plaintiff in Suit 5, starting from Deoki Nandan Agarwal to Triloki Nath Pande, are not just ordinary peace-loving Hindu worshippers of Ram, but members of the Vishwa Hindu Parishad, a militant organisation which made the construction of a Ram temple its political and financial bread and butter. It is interesting, as Anupam Gupta notes in his article, Dissecting the Ayodhya Judgment that neither Swami Vivekananda nor V.D. Savarkar mentioned any contest over Ramjanmabhoomi when they visited or wrote on the place, suggesting that it was made a big issue only much later on as part of partition-era Hindu communalism.

Also Read: Ayodhya Verdict: In ‘Balance of Probabilities’, Judges Missed Chance to Speak With Courage

On what evidence would the 4300 bench guess that the seemingly neutral ‘government’ charged with creating a trust to allot the land to a temple is run by a party which came to power on the promise of building that temple? There are no hints of the way in which the governments of the day, both state and Centre colluded in the process of demolition, through what Justice Liberhan, who investigated it, called a “joint common enterprise”. Indeed, this complicity of the state in the Hindutva agenda dates back to the forcible installation of idols inside the mosque in 1949, through the then-district magistrate K.K. Nayyar, who was close to the Hindu Mahasabha and later stood for elections from the Jan Sangh.

And finally, because there is no mention of the terrible violence that preceded and followed the “unlawful destruction” of the mosque, and which has gone unpunished and uncompensated all these years, the Supreme Court of 4300 would believe that the only thing that needed to be compensated was the loss of land, and not the loss of lives, the loss of citizenship rights, or the loss of justice. Two sons of the last Imam of Babri Masjid were hacked to death on the night of the demolition, some 1,000 died in Bombay alone in the 1992-93 pogroms, and the recommendations of the Srikrishna Commission lie in cold storage.

A civil suit, lawyers remind us, is legally separate from a criminal trial, and this bench was called upon to judge only the former. In public perception, however, as the judges well know, the directionality is mutual. LK Advani, who once tried to curry respectability by claiming that December 6 was the ‘saddest day of his life’, claims the verdict has now ‘vindicated’ him. The Akhil Bharat Hindu Mahasabha has already written asking for the charges against the kar sevaks to be dropped, and for them to be declared ‘martyrs’ instead. The VHP has started making plans for the construction of the temple. What are the odds that the trial court will punish anyone? Had the court waited to adjudicate the title suit till after the criminal responsibility was fixed – and having waited all these years there was no pressing hurry – the current verdict might have had a different import.

Reconciliation? 

The Ayodhya verdict claims to be in the interests of ‘securing a lasting peace and tranquility” and has been lauded by many violence-weary Indians on this count. But lasting peace or reconciliation can only take place on the basis of justice.

Earlier this year, I asked a group of poor villagers in Chhattisgarh whether we should press the government for compensation for the deaths and arson they had suffered at the hands of the state in Salwa Judum. They were unanimous in responding that they didn’t want blood money, they wanted those who did it to be punished.

Also Read: Ayodhya Dispute: Was Public Peace Privileged Over Justice?

The Ayodhya verdict may indeed secure peace, but it is the peace of fatalistic ‘compromise’ by a scared minority. Writing of criminal cases in Gujarat post-2002 in his article Broken Lives and Compromise, Harsh Mander describes the ubiquity of Muslims being forced to retract their cases against Hindu perpetrators of violence if they want to continue living in the villages. Most have now come to believe that ‘compro’ is a legitimate legal device.

The Ayodhya verdict appears to be the Supreme Court’s way of writing ‘compromise’ into the legal system. An actual compromise or ‘settlement’ by the mediation panel would also have ended up with the Hindus getting the land. Though premised on minority fears of future attacks on their mosques, insofar as it would have been by the generosity of the Muslims in relinquishing claim, there would have been a greater chance of reconciliation, than through this verdict.

Non-repetition?

The likelihood of non-repetition, which is so essential a part of restitution, rests on fragile premises. The 2019 judgment’s reference to the Places of Worship Act is no bulwark against the VHP’s stated ambition of targeting the Gyanvapi Mosque in Varanasi, or the Shahi Idgah mosque in Mathura. As the minority opinion of Justices Bharucha and Ahmadi stated in the 1994 Ismail Faruqui judgment:

“Based upon The Places of Worship Act, it was submitted that what had happened at Ayodhya on 6th December, 1992, could never happen again. The submission overlooks the fact that the Indian Penal Code contains provisions in respect of offences relating to religion. Section 295 thereof states that whoever destroys, damages or defiles any place of worship or any object held sacred by any class of persons with the object of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion shall be punished. …Those who razed the disputed structure to the ground on 6th December, 1992, were not deterred by these provisions. Others similarly minded are as little likely to be deterred by the provisions of the Places of Worship Act.”

The process of adjudicating a “thousand year old contestation” has forced the court, it appears, into a willful amnesia about the past 30 years. The Uruguayan writer, Eduardo Galeano, reminds us in Upside Down, however, of the perils of ‘Broken Memory’:

“At the end of the 18th century, Napoleon’s soldiers discovered that many Egyptian children believed the Pyramids had been built by the French or the English. At the end of the 20th century, many Japanese children believed the bombs that fell on Hiroshima and Nagasaki had been dropped by the Russians.”

The crux of the 2019 judgment is that Muslims could not prove they had used the mosque from 1528, when it was constructed to 1856-7, whereas the Hindus could prove longer usage. Surely the fact that the documentary evidence arises from a dispute in 1856-7 involves the barest logical inference that Muslims were present and worshipping in order for the dispute to arise. In fact, Carnegy’s 1870 report is cited in para 566 as saying that prior to 1856-7, both Hindus and Muslims worshipped at the mosque-temple. It is no one’s claim, not even the VHP’s, that the Muslims invaded the site in 1856 to obstruct Hindu worship. But for this 2019 judgment to make sense, that is indeed what Newbharat’s court will have to infer in 4300 on the ‘preponderance of probabilities.’

Homologies between the assumptions of the VHP and the Supreme Court

For all its claim to base itself on evidence and a secular Constitution, there are several places in the judgment where the common sense of the RSS/VHP seems to have become the common sense of the Court.

Also Read: Ayodhya Verdict: India’s Muslims Sought Dignity, Not Land

In discussing the maintainability of Suit 5 (VHP), the court goes beyond the simple legal position that the high court recognised the VHP representatives as ‘next friend’ of Ram Lalla, and nobody contested this, to the claim that they were in fact the best representatives of the interests of the deity:

“The case of the plaintiffs that the institution of the Suit 5 was necessitated as a result of the deity not being a party to the earlier suits and based on the apprehension that in the existing suits, the personal interests of the leading parties were being pursued without protecting the independent needs and concerns of the deity of Lord Ram, is well and truly borne out by the proceedings as they unfolded in the proceedings before this Court. The cause of action in Suit 5 cannot be considered to be barred by limitation on a proper construction of the basis of the cause of action for the institution of the suit. (para 428)”

Who is to say what the “independent needs and concerns” of the deity are? Is Lord Ram better served by having a grand temple, albeit one steeped in blood, or by the gratitude of millions of peaceful citizens who worship him in their own way? There is no place today for a ‘Hundred Ramayanas’ because now Lord Ram’s needs, interests and representation have been hijacked by one organisation. The greatest damage of this judgment in the long term is to Hinduism, not Islam.

In the only place in the judgment where the Vishwa Hindu Parishad is mentioned (para 59 of the “Addendum”) the sympathy for the VHP is open:

“The report, thus, has been prepared as a counter to the Vishwa Hindu Parishad case, which itself suggests that the four historians had not treated the subject dispassionately and objectively.”

If texts like the Skanda Purana are being relied on as evidence for an exact geographical location of Lord Ram’s birth (as in the Addendum), then we must also revise our existing chronology to believe that he was born in the Treta Yug and ruled for 11,000 years. One must not cherry-pick ‘evidence’ from sacred texts.

Also Read: We Now Have to Search for Ram

The court claims that it cannot question faith once it is found to be genuine (para 555). However, belief in untouchability, keeping women out of shrines or the faith in Sati are all beliefs genuinely held by worshippers. Even if faith is not the ground for the award of title, but the practice of continuing worship based on faith, surely both use and faith can be questioned on the grounds of constitutionality, especially if that belief has violent consequences. By opening up this question, the majority judgment in the Sabarimalai review also opens the door to a whole host of revanchist practices we once hoped would gradually become obsolete in the bright light of constitutional appraisal.

Composite culture

In the early censuses, there were many groups who declared themselves both Hindu and Muslims. By 1921, however, they were told they must choose only one identity. The Ayodhya verdict seems at one place to recognise this rich complexity in Indian history:

“Within the premises of the same complex there existed two religious faiths. Their co- existence was at times, especially before 1856, accepting and at others, antagonistic and a cause of bloodshed. Yet, the distinctive features of the site, embodying both Hindu and Islamic traditions led to the creation of a space with an identity of its own. The real significance attached to the composite structure is evidenced by the nature and the length of use by both of the parties.” (para 769)

The judgment also provides plenty of evidence to show that the Muslims contested the Hindu use of the outer courtyard and graveyard (see for instance para 684), just as the Hindus contested the inner courtyard. To the extent that it was a composite whole, it was an equally contested composite whole, and indeed if the Hindus exercised greater control over the outside space, the authorities supported the Muslims in their control over the inner space. From this position – whether one treats it as a contested composite whole or two divided portions – to saying that the Hindus alone must have rights over the whole is a radical jump in both logic, evidence and law.

Had the court truly wanted to use Article 142 to deliver ultimate justice, it could have reinforced the composite character of the site and the plural traditions of the country by asking the trust to build a public place like a hospital or university, while punishing those responsible for the demolition. The preponderance of probabilities leads to the conclusion that the court’s decision was predetermined, and it was influenced less by right and more by rule.

Nandini Sundar is a Delhi-based sociologist.