In his customary Vijayadashami speech on October 18, Rashtriya Swayamsevak Sangh head Mohan Bhagwat urged the Narendra Modi government to enact a law to build a Ram temple in Ayodhya. Such a measure will violate the Supreme Court’s past judgements and polarise the Indian electorate before the 2019 Lok Sabha elections.
Building a Ram temple in Ayodhya has long been a promise of the Sangh Parivar, including the Bharatiya Janata Party. It has been unable to fulfil it because of the hellishly complicated legal dispute for determining whether Hindus or Muslims own the spot where the Babri Masjid stood – before it was demolished by Hindutva forces on December 6, 1992 – and which is claimed to be Lord Ram’s birth place.
The Sangh’s hope to fulfil its promise on the temple before the 2019 elections was kindled when the Supreme Court declared in August last year that it would begin hearing from December 5 appeals against a 2010 Allahabad High Court verdict that provided for a three-way division of the disputed spot in Ayodhya between the Nirmohi Akhara, Sunni Waqf Board and the party representing the deity Ram Lalla. For one reason or another, the final argument in the Ram Janmabhoomi-Babri Masjid dispute, popularly known as Ayodhya matters, could not commence. It will now begin on October 29.
From Bhagwat’s speech, it seems he has serious doubts about the Supreme Court delivering the judgement on Ayodhya before the 2019 Lok Sabha elections. Such a scenario denies the BJP the opportunity of turning the Ram temple into a hot-button election issue to reap a rich harvest of votes.
Since no political party can be certain of returning to power, it has been widely presumed that the BJP will attempt to implement Bhagwat’s suggestion in the four-five months left for it to win a fresh mandate. A law to build the temple, however, is not possible without the Modi government disregarding the Supreme Court’s past judgements on Ayodhya.
Supreme Court’s status quo order
On January 7, 1993, a month after the Babri Masjid was demolished, the Central government acquired 66.7 acres of land in Ayodhya, including 2.77 acres on which the demolished structure had stood and where a makeshift Ram temple had been built, through an ordinance. The ordinance was subsequently replaced by the Acquisition of Certain Areas at Ayodhya Act, 1993. The Act was challenged in the Supreme Court, which through a majority decision in 1994 in the Ismail Faruqui case upheld its constitutional validity, barring the provision abating all suits in the Ayodhya dispute.
The Ismail Faruqui verdict implied that status quo, existing just before the ordinance was promulgated, had to be maintained not just at the 2.77 acres but for the entire 66.7 acres. This was clear from the arguments the Supreme Court cited in its judgement.
The court first noted:
“The interest claimed by the Muslims is only over the disputed site where the mosque stood before its demolition. The objection of the Hindus to this claim has to be adjudicated. The remaining entire property acquired under the Act is such over which no title is claimed by the Muslims. A large part thereon comprises of properties of Hindus of which the title is not in dispute.”
Next, the court cited reasons why the government was justified in acquiring the area beyond the 2.77 acres. This was because the Central government wanted to “ensure that the final adjudication should not be rendered meaningless by the existence of properties belonging to Hindus in the vicinity of the disputed structure in case the Muslims are found entitled to the disputed site”.
In other words, construction on the undisputed portion could be tendentiously designed, for instance, to block Muslims from accessing the site of the Babri Masjid in case they were to win the title suit to it. For this reason, status quo had to be maintained for the entire acquired land, although this was not explicitly stated.
In less than a decade, the Sangh sought to find a way around the judicial block. On January 20, 2001, during the Kumbh Mela, the Vishwa Hindu Parishad, a Rashtriya Swayamsevak Sangh affiliate, declared that it would start the construction of the Ram temple in Ayodhya any time after March 12, 2002. Its leaders continued to raise the pitch on Ayodhya through the year.
In February and March of 2002, Gujarat witnessed horrific communal violence, stoking anxieties over the happenings in Ayodhya. On March 8, the government received a letter from Ramchandra Paramhans, president of the Ram Janmabhoomi Nyas, a Vishwa Hindu Parishad trust, who said he wanted to do a symbolic puja on the undisputed portion of the acquired land on March 15. Given that both the BJP and Vishwa Hindu Parishad are Sangh affiliates, the letter was seen as a face-saver they had agreed upon.
Talk of the symbolic puja prompted Mohammed Aslam Bhure to move the Supreme Court, asking that it be disallowed. In court, Attorney General Soli Sorabjee argued that from his reading of Ismail Faruqui, temporary use of the undisputed land for puja was not prohibited per se and would not violate the status quo order passed by the Supreme Court in 1994. He said the 1994 order to maintain status quo applied only to the 2.77 acres, not to the entire acquired land.
On March 13, the Supreme Court cited arguments in Ismail Faruqui to reject Sorabjee’s argument. It said “… no religious activity of any kind by anyone either symbolic or actual including bhumipuja or shila puja, shall be permitted or allowed to take place” in the 67.7 acres of acquired land. It then referred the matter to a five-member bench. On March 31, 2003, the bench said the March 13, 2002, order was to remain operative “until disposal of the suits in the High Court of Allahabad”.
In the run-up to 2019
Sorabjee’s position in the Supreme Court in March 2002 gives the Modi government scope to introduce a bill in Parliament to change the legal basis of the judgements in Ismail Faruqui and Mohammed Aslam Bhure. The bill can clarify that since only 2.77 acres of the acquired land is disputed, the order of status quo applies only to that portion.
Such a bill, if passed, theoretically paves the way for some kind of construction activity in Ayodhya. At the least, it will symbolise the BJP’s intent to fulfil its promise of three decades.
An Act flouting the Supreme Court’s previous orders will be challenged. But herein is the trick: a bill cannot be challenged as long as it remains a bill, that is to say until it is passed by both Houses of Parliament, secures the president’s assent and is notified in the Gazette of India. Only a law is subject to judicial scrutiny.
It is very unlikely that the BJP will succeed in getting such a bill passed. This is because the party and its allies have majority in the Lok Sabha but not in the Rajya Sabha, where it is bound to get voted out.
But the introduction of such a bill in Parliament will pose a dilemma to the Opposition, particularly the Congress. Its president Rahul Gandhi has been emphasising his Hinduness. Will he oppose a bill that seeks to alter the legal basis of Ismail Faruqui and Mohammed Aslam Bhure, which would enable Hindus to use the undisputed portion of the acquired land?
Once again, the BJP will remind Gandhi of how his party overturned the Shah Bano judgement in 1986 through a legislative enactment. Thus, all those opposed to the bill will be projected as anti-Hindu. It will set the tone for polarising the electorate before next year’s elections.
The BJP also has the option of advising the president to promulgate an ordinance to change the legal basis of Ismail Faruqui and Mohammed Aslam Bhure. The Kumbh Mela will begin in Allahabad on January 15, 2019, heightening religious fervour in the Hindi heartland. With a multitude participating in the Kumbh, it is just the stage to give a call to build the Ram temple, as was done in 2001.
It will suit the BJP to issue such an ordinance after the short session of Parliament convened for passing the vote-on-account or interim budget ends in early February. The last bathing ritual at the Kumbh ends on March 4. The timing will be appropriate for another reason: the BJP’s allies, discomfited over such a measure, are unlikely to break away weeks before the elections.
The ordinance will undoubtedly be challenged. But ordinances are seldom stayed, because these have presumption of constitutionality. However, one that alters the status quo in Ayodhya might just be stayed, because it would be a flagrant violation of past Supreme Court orders, more so if the Rashtriya Swayamsevak Sangh and its affiliates decide to undertake symbolic construction activity. Either way, the BJP will succeed in raising the pitch on the Ram temple.
Indeed, the Sangh-BJP will still want a judicial verdict to build the Ram temple. This perhaps explains the intimidatory tone of Bhagwat’s Vijayadashami speech. Complaining of the delay in the Ayodhya verdict, Bhagwat said, “It is in nobody’s interest to test the patience of society without any reason.” He also referred to the Supreme Court’s September 28 verdict overturning a ban on the entry of women between the ages of 10 and 50 into Kerala’s Sabarimala temple, saying, “The legal verdict has given rise to unrest, turmoil and divisiveness in place of peace, stability and equality.”
Such minatory tactics are unlikely to speed up the Ayodhya case in the Supreme Court. For the 2019 elections then, the Sangh will be happy to bring in a bill or ordinance, not so much to construct the Ram temple but to make it a tool of polarisation.