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The Ayodhya Judgement of 30 September 2010

Reimagining History

by Gautam Patel, 15 October 2010

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The Ayodhya judgement attempts a political solution and leaves the law vulnerable

It’s not about Rama. It’s not about Babur. It’s not even about a temple or a mosque. It’s about an assault of a kind we’ve never seen before, on history, law and the truth.

Nobody’s seen the judgement yet but what we gather is that by a 2-1 majority, the court has decided to carve up the site in three, and to hope for the best.

When on 6 December 1992 a mob of 150,000, stirred by deliberately provocative speeches from right-wing Hindu leaders, demolished the Babri Masjid despite a solemn commitment to our Supreme Court that the mosque would not be harmed, it was in every sense a desecration, most especially of our Constitution and the law. Far lesser infractions have received harsher treatment.

At stake were the sanctity of the law and the Constitution, and the immutability of a historical fact. The masjid has been on that site for centuries. That the site is specially revered by Hindus is also historically true. The only question is how far you permit one historical truth to trump another and achieve the undoing of a shared heritage.

124 years ago, Colonel Chamier, an Englishman serving as the District Judge decided a suit claiming a right to build a temple outside the masjid premises. He visited the site. He concluded that it was built in Babur’s time, that it was on land held sacred by Hindus, and then said:

“… but as that event occurred 356 years ago, it is too late now to agree with the grievances.”

Typically English, eminently sensible stuff. Perhaps a little too straightforward for our more complicated latter-day sensibilities. Today, we need courts to decide whether a figure from mythology and epic history actually lived and where he was born. How is this even possible as a matter of legal proof? All that can be determined—and this all that the High Court seems to have done—is to ascertain whether it is commonly believed that Rama was born here. That takes you precisely nowhere.

The High Court had before it the surviving three of four claims filed in relation to the site. The first was a title suit of 1950 by Gopal Singh Visharad seeking, among other things, the right to worship at the site. A second similar suit was filed and withdrawn. In 1959, the Nirmohi Akhara—a Hindu religious institution frequently at loggerheads with the VHP—filed a third title suit for possession of the site. In 2002, the Muslim Wakf Board woke up and filed its own claim. This one seems to have been dismissed on technical grounds such as limitation.

Central to the litigation are the idols of Rama said to have been installed there in 1949; that is, very shortly after the horrors of Partition. For 43 years, both communities used the site side by side till, for reasons that were clearly political and had nothing to do with faith or even the shared use of the site, a political party staged a frontal attack on the Constitutional imperative of secularism.

Secularism is everybody’s favourite whipping boy. Muslims claim special privileges in the name of secularism, Hindus demand a reversion to a time that exists only in a political imagination. The High Court judgement had a civil case before it and could not decide larger issues of constitutionality. But it might have kept those principles in mind, and secularism’s best definition is one single word, a word on which EM Forster wrote a remarkable essay: tolerance. All the suits before the High Court demanded a non-secular decision. Not one should have succeeded, even partially. A High Court judge’s oath of office demands fidelity to the Constitution and the law. Finding no way to balance these two the High Court decision attempts a secular solution but in doing so sacrifices the rule of law. And even the secular ‘solution’ is, at the very least, improbable: do Their Lordships expect the RSS and the VHP to assist in the re-building of the mosque?

Equally disturbing is the creation of a decidedly political space in what is supposed to be a politically neutral and non-partisan forum, the judiciary. The carve up is a political solution adopted by a court, not a decision based, as it should have been, strictly on facts and law, and there is no clearer indication of this than the inherent contradiction in dismissing the Wakf Board’s suit and simultaneously granting it a one-third right over the site. If the suit was being dismissed, no legal right could have followed; but a political one could, and did. Successive governments have abandoned their two obligations to uphold the rule of law, and to broker a solution, and blithely made it the judiciary’s headache. The judiciary, too, attempts only to broker a solution. No one bothers with the one thing that most affected us in 1992, affects us now, and will, if this be the position, affect us for all time: the cold, hard despatch of the law.

The implications of the High Court’s pizza-slicing approach should frighten us for another reason too. What we are told is nothing but this: it is perfectly all right to demolish an old structure and to lay claim on the basis of some real or imaginary right, and to do so even by taking the law into your own hands, cocking a snook at the Supreme Court and making rude gestures at the Constitution. It is also perfectly all right to reinvent or reimagine an ancient history and to superimpose it on a latter-day reality. If this is to be a precedent, what goes next? The Taj Mahal? The Jama Masjid? Humayun’s Tomb? The Lodi Garden monuments? There are “Muslim” monuments across the length and breadth of this country, and each one is part of our heritage.

For nearly three centuries from 1526 CE the Mughal Empire created a nation state previously unequalled in economic power and territorial dominion. The benefits of that empire are with us still in more ways than can be described: technology, astronomy, metallurgy, trade, language, music (our Hindustani classical music is stuffed with Muslim influence), literature, art and, of course, architecture. Curiously, while we are keen to attack the Mughals, principally on the grounds of religion, we are markedly less enthusiastic about targeting the British though they, too, professed a different religion. The reason is obvious: we would be utterly incapacitated without a raft of the many legacies the British left us from railways and the civil services to the very concept of democracy and, of course, the judicial system. We embrace these legacies, and use some of them to attack an earlier heritage, unmindful that we are what we are not despite our history, but because of it.

A shorter version of this article first appeared in the Mumbai Mirror on Friday, 1 October 2010.