In Book II of Nicomachean Ethics, Aristotle, the ancient Greek philosopher, argues that moral virtue, with justice as its central aim, consists of a mean between extremes. On Friday, the Supreme Court of India decided to refer the Ayodhya dispute to mediation. In this attempt, the court seems to be trying to find a middle-ground in the competing claims of the Hindus and Muslims. In other words, it is in a way a search for the Aristotelian mean.
But Aristotle did not look for a mechanical mean to temper the extremes down. His idea of “practical wisdom” that fuels judgement is to find the right thing to do. As Michael Sandel quotes the philosopher in his seminal work Justice: What’s the right thing to do?, for Aristotle, the mean between extremes was also about “doing the right thing, to the right person, to the right extent, at the right time, with the right motive, and in the right way.”
The motives of the Supreme Court seem to be in the right place. Given the violent political history of the Ayodhya dispute which culminated in the destruction of the Babri Masjid in December 1992, the court, through mediation, is hoping to create consensus that would end the dispute without another cycle of violence. However, there are larger issues of law and justice at stake in the dispute, including what happens to the idea of a constitutional democracy if the majoritarian will is allowed to prevail. Underpinning these questions is the idea of fairness on which constitutional justice is built, something to which the Ayodhya dispute poses a danger.
Today, for most functional democracies, a Constitutional scheme of law feels almost like a second skin. But Constitutionalism as a concept took almost 200 years to get entrenched as the dominant idea in world politics, assisted in its evolution by the two great revolutions in America and France.
As American philosopher Ronald Dworkin states in Freedom’s Law, democracy has two facets. One is democracy as a set of values such as equality, dignity and tolerance, the last one exhibited in concepts like secularism. The second is to see democracy as a process, with elections as its true manifestation. If legislation is merely the passing of laws with majority of votes, it becomes what Dworkin calls a “statistical majority” form of democracy.
Constitutionalism, while it facilitates the process of democracy, is primarily about the values of democracy. A Constitution protects rights from being trampled by popular vote, which in most cases is the expression of the will of the majority. As the German jurist Dieter Grimm argues in Constitutionalism: Past, Present, and Future, an absolute rule is always characterised by the lack of legal restraints. A democracy that does not restrain majoritarian power through guarantees of rights often leads to the absolute rule of majority represented by a few.
In fact, it is on this premise of restricting majoritarian power that the concept of judicial review is built. The legitimacy of unelected judges to strike down laws framed by the elected legislature is derived from an idea that there are inalienable rights that need an additional layer of protection outside the legislature.
As Grimm explains, rights through mere statues of the legislature leaves fundamental rights to the mercy and goodwill of the elected. A higher-ranking law, the Constitution, ensures that the state itself respects the social order. In India, apart from explicit constitutional provisions of judicial review, the judiciary has developed the basic structure doctrine as an implicit restriction on the legislature to protect fundamental rights. This aims to fulfil what philosopher Karl Popper called the “society of free citizens”. If the state is necessary to secure freedoms, he says, only a state controlled by free citizens could ensure this freedom.
It is in this context of constitutionalism that the Ayodhya dispute has to be framed.
Ayodhya and freedom
The Ayodhya dispute dates back to much before independence. In 1949, this dispute took a drastic turn when the idol of infant Ram was installed at the disputed site surreptitiously. In 1992, Hindutva fanatics tore the Babri Masjid down, claiming that the spot on which the mosque stood was the birth place of Ram.
Since then, there has been a slow build-up of pressure on the Muslim side to concede the disputed site to the Hindu side, arguing that it is a matter of faith for the majority Hindus. In the last few months, there have been calls for an ordinance to circumvent the judicial process and build the temple at the disputed site.
This case has now become a test for the constitutional set up of India. When the Babri Masjid was brought down, a challenge was thrown to the very concept of equality, a central value of constitutionalism. The majority tried to impose its will on a minority through violence. Later, this act of violence was sought to be relegated to the background of the dispute by putting the question of the faith of majority in the foreground. In essence, this was a demand for the minority to compromise its rights and faith for the sake of the majority, the exact kind of situation for which constitutionalism as a protective framework was originally developed.
If the courts are to sustain the legitimacy of their powers to question decisions of a legislative majority, they have to protect the minority from the majoritarian onslaught in all circumstances. In this sense, the Ayodhya dispute will be a watershed in the history of India and of the judiciary, telling us whether democracy here is the construction of values or merely a process.