When we look back at how the path for majoritarianism was paved in India, the role of the judiciary will be intensely discussed. Two recent moves by the courts are likely to garner some attention.

The Supreme Court’s decision on March 12 to entertain the plea challenging the Places of Worship (Special Provisions) Act, 1991, is yet another instance of its willingness to give a legal cover to the majoritarian drive undertaken by the organisations belonging to the Rashtriya Swayamsevak Sangh ecosystem.

This was followed by an order of a district court in Varanasi on April 8, in response to a petition, directing the Archaelological Survey of India to conduct a survey of the Gyanvapi mosque to determine whether it was superimposed on a pre-existing temple.

Are we going to witness a replay of the masterly act done in the name of restoring Ram Janambhoomi temple at the site of the Babri Masjid in Ayodhya? The Supreme Court, while accepting that the Babri Masjid had stood at the site for five centuries, that it was a live mosque, that idols of Hindu deities had been illegally smuggled in the mosque, that the demolition was criminal, decided that since some Hindus had kept looking at land with longing, it should go to them.

Many jurists reacted with disbelief at the logic of the court even as some expressed appreciation for the acute realism demonstrated by the judges.

Dismembering Jammu and Kashmir

Another milestone of the majoritarian movement was the dismemberment and degrading of the state of Jammu and Kashmir by a parliamentary act hollowing out Article 370 of the Constitution that gave the territory special status. The Supreme Court threw all the petitions challenging the government’s decision into cold storage. It did not show any urgency to hear habeas corpus pleas on behalf of illegally detained politicians and other citizens of Jammu and Kashmir.

The same attitude was visible in the matter of the Citizenship Amendment Act, which provides a fast track to Indian citizenship for immigrants from neighbouring countries – unless they are Muslim. The exercise of preparing the contentious National Register of Citizens, a list of Indian citizens living in Assam, was steered by the Supreme Court itself.

The court is allowing itself to facilitate the political project of this government. It has shown no urgency to hear the pleas challenging the recent laws enacted by Uttar Pradesh, Madhya Pradesh and Karnataka that effectively criminalise inter religious marriages. It isn’t only Muslims who have been arrested since these laws have came into force. The judges must be aware that these are the most effective legal ways to continuously harass Muslims and Christians. But they don’t see any urgency to intervene.

Protests against the government's citizenship initiatives in Delhi's Shaheen Bagh.

But the same court that has put all these petitions on the backburner has enthusiastically moved ahead in reviewing the Places of Worship (Special Provisions) Act, 1991, which mandates that character of all religious places of worship should be maintained as it was on August 15, 1947. The lower courts have sensed the desirable direction and moved too.

One can be sure that historians will jump in. A debate will start about the veracity of the claim that a temple existed on the site in Varanasi. But that is irrelevant. The Supreme Court’s Babri Masjid judgment in 2019 should open our eyes to the futility of this debate, of digging out historical evidence. After all, though the Supreme Court conceded that there was no historical evidence to suggest that the mosque in Ayodhya had been built by destroying an existing temple, it awarded the site to Hindus for a Ram temple to be built. History and archeology are quite irrelevant here.

In its judgment on the Ayodhya site, the Supreme Court had referred to the Places of Worship Act to assure Muslims and secular Indians that its order taking away the land of the Babri Mosque would not be a precedent for further such cases because the 1991 Act has mandated the state to maintain the status quo of all religious places as it was in 1947. However, barely a year after its judgement with this guarantee, the same court has not hesitated to open up the issue.

A new jurisprudence

From the Supreme Court to the primary courts, a new jurisprudence seems to have taken centrestage. Political theorist Pratap Bhanu Mehta wrote that the shadow of the Weimar judiciary hangs over our judicial system. Was that an understatement? Have we actually moved far ahead?

Leave the judiciary aside, we are yet to hear a word from the stalwarts of the secular politics about this dangerous move by the courts. Their excuse will probably be that they are busy with elections in several states. Of course, if secularism has to have a chance of surviving, it is very important that these elections be won. They cannot possibly upset their Hindu constituents by criticising these orders.

But we should not be surprised to see them jump on this bandwagon and adopt the demolition of the Gyanvapi mosque as their own cause. Or perhaps they will wait silently till it is demolished and then seek an amicable solution, leading to the construction of a magnificent temple in Varanasi. The record of all political parties barring the Left, which have wavered in the majoritarian winds for some time in the case of building of a Ram temple, is not reassuring. There is no reason for them to chart a new course now.

Muslims will be lectured about their obsession with mosques. They will be shamed for their backwardness in all worldly affairs. They would be criticised for their stubbornness, for not being sensitive to the sentiments of their elder brother, the Hindus. Examples from the life of the Prophet and Islam’s past will be excavated to tell them that they need to be large-hearted and learn to compromise. Their reluctance to relent will be bandied about as proof that that they do not value peace. Some Muslim intellectuals, civil servants and businessmen will advise them to compete with their Hindu compatriots in these secular areas.

Of course, no one will ask Hindus about their obsession with their imagined loss, their imagined historical trauma that will evaporate only if they take extract revenge from present-day Muslims.

Let us hope that one day Hindus will see the treachery involved in this exercise instituted by the proponents of this ideology of historical victimhood. Given their present mental and psychological state, that seems unlikely. But we must all keep talking about this deliberate injustice.

Apoorvanand teaches Hindi in Delhi University.