We live in unimaginably difficult times. We must therefore confront difficult questions, and give voice to our misgivings especially where it concerns questions of constitutionalism and justice. For in an important sense, all we have in our democracy toolkit today is an idea of justice and the hope that constitutional sensibilities will trump the politics of hate. Elusive, faltering, but possible – eminently so. It is in this frame of mind that I share some of my thoughts on the Babri Masjid case that was decided by the Supreme Court of India last week.

Contexts are always critical. Whether or not the court can take note in its deliberations on specific cases, as citizens, we must understand judicial decisions – whether unanimous or dissenting – as embedded within a larger context, and therefore as reinforcing the context or causing a constitutional disruption. And judicial dissent is an immeasurable treasure in these times.

We live in a time when the Union Home Minister issues an open call to arms to the foot-soldiers of the ruling party against an elected state government that dares to implement the 2018 decision of the Supreme Court – the reference is of course to Sabarimala. The Supreme Court is not supreme, they say through this, and with impunity. Even as we speak, the Sabarimala issue again precipitated by the Sangh Parivar with the Central government as its flag bearer, has been referred by the Supreme Court to a larger bench, the only saving being that it was not a unanimous decision. Dissent is the safety valve in a democracy, as a judge observed last year.

The state of Jammu and Kashmir is dismantled, Article 370 that gave it special status in the Indian Union revoked, the people of an entire region are placed under occupation, and the Supreme Court has not yet, after over three months of lockdown, intervened to restore their constitutional rights in the region. While the matter of the revocation is itself a serious one, post-revocation, why have fundamental rights been in a state of suspension, and why is there a deafening judicial silence on this?

Jurisprudential dissociation

Again, the Supreme Court is not supreme, the government seems to say, with impunity. Judicial silence disables justice through what I have elsewhere called jurisprudential dissociation – an interpretive strategy in India to circumvent providing critical protections to vulnerable communities against discrimination and loss of liberty, even while acknowledging in unequivocal terms, in the same case, that it was the duty of the court to protect the fundamental rights of every citizen.

We can scarcely forget that the leadership at the Centre and in the state of Uttar Pradesh was at the forefront of the demolition of Babri Masjid in 1992 and had unequivocally declared that a Ram temple shall be built in its place even while the Supreme Court was hearing the case. From the Sabarimala experience, we know by now what that means.

A Muslim activist holds up a placard that reads "Implement Liberhan Commission and punish the culprits" on the 26th anniversary of the demolition of the Babri Masjid in Ayodhya, in New Delhi on December 6, 2018. Credit: Sajjad Hussain/AFP

Quick on the heels of the Supreme Court verdict on Ayodhya, the Hindu Mahasabha is already pressing for the withdrawal of criminal cases against the kar sevaks involved in the demolition of the Babri Masjid in 1992 and the ensuing violence. It has demanded that they be given government pensions, and lists of kar sevaks be installed in the temple that will be built at the site where Babri Masjid once stood in Ayodhya. After all, they assert, “the Supreme Court has given its verdict in favour of Ram Lalla”. And despite judicial assurances to the contrary, the Visva Hindu Parishad’s claim in respect of 3,000 other mosques is cause for deep concern and anxiety.

No dissenting voices

This then is a small part of the context in which a 1,045 page unanimous decision was delivered by the Supreme Court on Babri Masjid, where the constitutional bench did not name the author of the judgment; and even more curiously, included an anonymous 116 page “Addendum” at the end of the judgment, which is literally (through its placement in the judgment) the last word. It functions as a jurisprudential exception, reinforcing and reiterating the “faith, belief and trust of the Hindus” that the “disputed structure is the holy birthplace of Lord Ram” after the judgment has weighed evidence and arrived at its decision on the basis of purportedly rational principles. It therefore returns focus to the supremacy of Hindu theological considerations, and will determine the reading of the judgment as long it remains unexpunged. It is tragic that this was a unanimous decision with no dissenting voices within the apex judiciary.

It has been argued that The Places of Worship (Special Provisions) Act, 1991, and the explicit provision in Section 3 therein that “no person shall convert any place of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or of a different religious denomination or any section thereof” will be a restraint under the present regimes.

It is true, as the Court observes, that the Act imposes a “non-derogable obligation towards enforcing our commitment to secularism under Indian Constitution”; it is also true that the Act itself guarantees the principle of non-retrogression. But adherence to the letter and spirit of these principles, statutes and indeed the Constitution presumes a political dispensation that subserves constitutional values. We also have no guarantee that courts will place the public good, due process, and the call of the Constitution above all else with a sense of urgency in the event of derogation, if recent courtly moves in the matter of personal liberty and right to life are any indication.

As Faizan Mustafa and Aymen Mohammed have observed in their measured critique of the judgment in The Hindu, “though the apex court accepted that a wrong had been done…in the final order it had to give the entire disputed site to the Hindu plaintiffs though the law of equity says that one who seeks equity must come with clean hands”.

The minutiae

Several senior commentators have dwelt at length on the minutiae of the judgment. While some have been circumspect on the extent to which it has been crafted on a keen understanding of the rule of law and due process, others have been laudatory over this unparalleled achievement of declaring the title in favour of the deity Ram Lalla and offering Muslims a compensatory allotment – which Upendra Baxi describes as “an exercise of power and duty to do complete justice”.

Yet others have been vocal in their critique and accused of being “incendiary“ for being sharply critical. The polarisation of communal interests was evident in the case – in fact the title suit itself is a result of this polarisation and a political consequence of the programschrift of the Sangh Parivar – the litigants on the Hindu deity’s side were all active functionaries of the various arms of the Parivar. To disregard this critical aspect of the claim is to refuse to see the elephant in the room.

Kashmiri journalists in Srinagar protest on October 12 against the internet blockade put into place by the Indian government. Credit: Tauseef Mustafa/ AFP

The court repeatedly identifies the parties by religion of petitioner, not by name(s) of individual petitioners, so despite assertions by senior scholars to the contrary, constitutional othering has been entrenched through this judgment, unfortunately so. The question of judicial empathy is at the centre of this case. What are the expressions of empathy and its effects? Is it weighted equally in relation to all parties to the dispute? And how is empathy (or the lack of it) in this instance interlocked with questions of equity (or the lack of it)?

Shifting the discourse

Rather than looking at this question in the aftermath of the judgment in the frames of “constitutional othering” (ie examining whether and to what extent Muslims are named and divested and Hindus named and endowed), it is extremely important for our collective dignity to shift the terms of the discourse. This cannot be done by just deciding that this business is done and dusted and moving on.

The judicial loquacity of this decision stands in stark contrast to the judicial deflection in matters related to, say, Kashmir. Why? Babri Masjid is a title suit for a 1,500 square yard plot of land which masks two episodes of mass violence – in 1949 at the peak of Partition violence and in 1992 when Hindutva politics rose to a violent, genocidal crescendo in the country. Kashmir is an entire state and its people. Both cases involve profound and targeted communal violence – genocidal in the first case, democidal in the second. Both cases concern a similar usurpation of possession, a similar “occupation” – and the judicial loquacity and deflection have an identical effect. This is the reality that stares us in the face.

Contexts have personal consequences and spin offs and have the power to alter individual consciousness. It is therefore critical for us to reassemble our plural intellectual and moral reserves. Irrespective of my personal faith or conscience, which I have a guarantee under the Constitution to profess, Babri Masjid is an intrinsic part of my heritage, the desecration of which has caused deep injury to me; the desecration of the Golden Temple was deeply injurious in a similar way.

All these demolitions/desecrations occurred in Independent India, under the watch of the Constitution, often at the behest of mainstream political parties and/or elected governments. That they are deeply injurious to our collective psyche and well-being is a consequence that bears infinite recall.

To fall into the trap of disaggregating harms and gains by religious identity, and placing ourselves in that template is the worst possible harm we can do to ourselves. The responsibility to safeguard religious freedoms in all their plurality, and to ensure the principle of non-discrimination within our faiths is our collective responsibility under the Constitution, a citizens’ responsibility – we can scarcely abdicate this right to interpretation by courts, or to conservative political formations that do not represent communities of believers or even allow courts and governments to draw us into an adversarial classification.

Kalpana Kannabiran is Professor and Regional Director, Council for Social Development, Hyderabad.