Early on its much-awaited Ayodhya ruling on Saturday, the Supreme Court made a reference to the “secular features of the Indian polity”, noting that they are “one of the basic features of the Constitution”.
The judgment is full of such high-minded references to India’s secular ethos and rule of law. “At the heart of the Constitution is a commitment to equality upheld and enforced by the rule of law,” wrote the bench. “Under our Constitution, citizens of all faiths, beliefs and creeds seeking divine provenance are both subject to the law and equal before the law.”
The court continued: “The court does not decide title on the basis of faith or belief but on the basis of evidence.”
Not only that, the court goes on to expressly condemn the two acts that resulted in the very case the court was now hearing. In 1949, idols were forcefully placed inside the Babri Masjid. Calling the act one of “desecration” the court went onto hold that “the ouster of the Muslims on that occasion was not through any lawful authority but through an act which was calculated to deprive them of their place of worship”.
The court also said the 1992 “destruction of the mosque and the obliteration of the Islamic structure” was an “egregious violation of the rule of law”.
Yet, when it came to actually deciding on the title suit for the land on which the Babri Masjid stood, the court converted these high-minded principles into mocking homilies. Ignoring its own talk of secularism, rule of law and the crime of mosque demolition, the court took a hard majoritarian stance to allow a temple to be constructed on the spot where the Babri Masjid stood.
The court set up a lopsided test, making Muslims bear the burden of proving exclusive possession of the mosque while the Hindu side did not need to meet a similar standard of proof.
In some cases, this uneven approach descended into farce where the court used a “balance of probabilities” test to conclude that there is no proof that the Babri mosque actually functioned exclusively as a mosque from the 16th century to 1857. The court needed watertight proof to be convinced that a mosque functioned as a mosque but no similar burden proof is placed on the Hindu side to show that they worshipped at the site.
Moreover, the court actually rewards trespass. The fact that Hindus constantly interfered in Muslim worship in the inner courtyard is seen as proof that Muslim possession was not absolute. Ironically, the fact that Muslims did not interfere in Hindu worship in the outer courtyard of the mosque is seen as proof that Hindus had unimpeded possession.
The court also takes the curious position of noting that throughout history, the land in dispute has seen a division, with Hindus able to show they held exclusive possession of the outer courtyard, whereas the Muslims were not able to show similar exclusive possession of the inner courtyard. Yet, in spite of the fact that inner courtyard possession is certainly disputed, the court maintains that ownership can only be decided for the entire parcel of land. This, in spite of the fact that the Allahabad High Court in 2010 had decided to partition the land.
This unusual, peremptory decision helped in awarding the entire plot for a temple.
As a cherry on the majoritarian cake, the court not only awarded the entire plot to the temple, it asked the Modi government to set up a trust to construct the religious structure. Not only does this violate India’s secular character, bringing the Union government into the picture makes little sense since it was not a party to the title dispute. Justified fears now exist of how the ruling party, which also spearheaded the violent Ramjanmabhoomi movement to campaign for a temple, would politicise the construction of the shrine.
The aim of the 1992 Babri Masjid destruction was to build a temple at the site of the mosque. The court’s convoluted reasoning has ensured that this aim stands fulfilled. In effect, majoritarian mob violence has been rewarded.
The remit of the judiciary is to protect the law and citizens’ rights. However, it has frequently failed to uphold those responsibilities. In 1976, the Supreme Court folded in front of the Indira Gandhi government, ruling that in an Emergency, even fundamental rights stand suspended. It has refused to enforce the fundamental rights of Kashmiris when the Modi government placed the Valley under lockdown. And in Ayodhya now, the court has used majoritarian force instead of the law to rule on India’s most scarring moment since Independence.
