The 9 November judgment of the Supreme Court gives the entire 2.77 acre of the Babri Mosque’s disputed land to the deity Ramlalla Virajman. The court uses its special powers under Article 142 of the Constitution to direct the central government to give six acres to Muslims so that they can build a new mosque in lieu of the one destroyed in 1992. The court also directs the central government to form a trust to oversee the construction of a temple in Ayodhya at the site of the erstwhile mosque, hence undermining the authority of the Ramjanmbhumi Nyas of the Vishwa Hindu Parishad (VHP).
Many commentators have seen in these arrangements an effort towards a workable closure to a longstanding communal conflict. Yet, they are pushing the Indian state on a dangerous trajectory, from where it will be expected to accept even more strident demands of majoritarian communal forces.
The Republic of India got entangled with the Babri mosque-Ramjanmbhumi dispute within a year and a half of freedom from colonial rule. On the night of 22-23 December 1949, before the time for the Friday namaz, idols of Lord Ram were surreptitiously placed in the inner courtyard of the mosque after breaking its lock. There is good circumstantial evidence that the district administration, the lowest rung of the Indian state on the ground, was involved in the act.
Despite back-and-forth messages between then Prime Minister Jawaharlal Nehru and state Chief Minister Prakash Pant, the argument of the danger of breakdown of law and order won the day and the idols continued to stay within the mosque premises. Seventy years later, the highest court has called this act a desecration of the mosque, which is illegal.
The judgment makes other secular claims too. The faith of the Hindus that the mosque site is the birth place of god Ram, is declared not be the basis for deciding the suit. It reaffirms the validity of the Places of Worship Act of 1991, which freezes the status of all religious places as it existed at the time of Independence, irrespective of what any group of faithful believe. It does not grant juridical personality to the believed birth place of god Ram. It also uses article 142 to grant “full justice” to Muslims for the loss of the Babri mosque.
Indeed, the judgment’s logic giving the disputed site to the Hindu side is purely secular. No party could present a title deed from a sovereign authority to the land. So, the duration and degree of possession could be the only basis for a decision. Purely on the basis of the evidence presented to the court on these parameters, the scale of justice of the Supreme court tilts towards the Hindu side. Hindus get the site because they could prove that they have been on the outer courtyard of the mosque at least since the 18th century, according to some European travellers’ accounts.
Muslims lose the site because they could not prove their exclusive possession (which they obviously did not enjoy as due to their own admission that Hindus have been in the outer courtyard). They also failed to prove that namaz was offered in the inner courtyard of the mosque between 1528, when it was constructed, and 1857, when it enters the British colonial records after a riot.
It has been rightly pointed out that the court’s line of argument puts an unequal burden of proof on the Muslim side. They lost the site because they could not present any hard evidence of exclusive possession. Hindus get the site on the basis of travellers’ accounts, which according to the Indian Evidence Act, 1872, cannot be conclusive evidence. These very accounts also refer to the building as a mosque, yet the court wants a further proof that Muslims were indeed praying inside it. Evaluation of evidence is the judges’ prerogative. They can be wrong, but the mistake is not based upon faith. They did not weigh one party’s faith heavier than the other. In their wisdom, the evidence of possession presented by one side was stronger than the other. So, at most the judgement can be faulted for a ‘secular’ mistake.
Nevertheless, Supreme Court’s judgment baffles common sense. If the destruction of the mosque in 1992 by self-declared Hindu groups was a crime, and placement of Hindu idols in 1949 an illegal desecration, then how do Hindus get the possession of the site where the mosque once stood? Such a doubt is an example of a robustly secular common sense. In contrast, the Supreme Court’s nuanced logic exemplifies an unprincipled secularism, which in fact is quite widespread in Indian statecraft and socio-political imagination.
Only this only explain the fact that none of the five judges found their judgment’s logic odd, or that even liberal and acute commentators such as Upendra Baxi and Faizan Mustafa, and retired Justice Santosh Hegde, and noted lawyer Sanjay Hegde find positives in the judgment.
Putting Faith’s Cart before the Secular Horse
Secularism in India is said to be based upon different assumptions, realities and practices than in Western liberal democracies. There, it is claimed, secularism implies a strict separation between state and religion. The secularisation of society has made religion a private affair, reduced its import in public life, and hence eased the way for a secular state.
India, on the other hand, is claimed to be a land of deep faith and religious diversity. Secularism here is taken to mean tolerance of other’s beliefs and practices. The secularism of the Indian state is understood as equal respect for all religions. Such simplified dichotomous narratives are not only factually incorrect, they also display a gross misunderstanding of the principles of secular governance.
All modern democracies are perforce secular because their two fundamental values and operative principles, namely the equality and freedom of all citizens, are understood in a humanist and non-theological manner. Framers of the American Declaration of Independence in 1776 may have believed ‘that all men are created equal and that they are endowed by their Creator with certain inalienable Rights’. However, even in a deeply religious country such as India in 1947, the framers of the Constitution did not find it fit to draw upon any religious belief or doctrine.
In fact, religious practices such as Untouchability were declared illegal. It is the primacy of a secular ethic over any religious belief which makes modern democracies secular, rather than any pre-determined behaviour of the state towards religious beliefs and communities. Conceptions such as the “wall of separation” between state and religion of American jurisprudence, or “equal distance from all religions”, as advocated from a Nehruvian conception, or a Gandhian notion of a deep communal harmony, are all contextual consequences of a secular polity.
None of these are fundamental ideas in themselves. Secular states do not allow equal freedom to all religious practices. Polygamy is banned in the United States, even if it is allowed by Islamic or Mormon precepts. According Indian jurisprudence, only the so-called “essential practices” of a sect are protected under the fundamental right to religious freedom.
It does not take much effort, with the scalpel of secular ethics, to scratch off the veneer of secularism from the Supreme Court verdict, and to expose its anti-secular underpinnings. Once the idols were surreptitiously placed to desecrate the mosque in 1949, and later the mosque itself was destroyed in 1992 in an act of mass vandalism, the Ramjanmbhumi affair ceased to be only a matter of religious belief, and a civil dispute between two groups. It became a matter of public crime. Every state’s first responsibility is to protect society’s public sphere from acts which violate its constitutional values.
A secular state would have treated the desecration and destruction of a place of worship as most critical. In India, however, while the criminal case of the destruction of Babri mosque lingers on even 27 years after the crime, the highest court of the country showed an unseemly haste in arriving at a verdict on the civil suit. A secular polity would have frozen the title suit till the criminal case was decided, so that people and organisations found guilty of the crime were automatically barred from the civil suit.
It seems that in India a separate (im)moral order has been accepted both by the state and the society for activities done in the name of religion. Public crimes in the name of religion are not only tolerated, but also get handsomely rewarded, as has happened in the current case.
The Supreme Court verdict gives the 2.77-acre land to the deity Ramlalla Virajman without getting into the antecedents and human motivations associated with it. Non-human entities getting juridical personality is an old legal practice. Deities in India have been given a juridical personality since colonial times, where local traditions assumed deities to be the owners of temple property and attached agricultural lands. The colonial rule accepted notional ownership by non-human deities, but also tried to systematise rules for their management by community-based associations according to established customs.
Hence, while the social institution of deities preceded the advent of modern legal practice, the grant of juridical personality to deities brought their property and associations of humans managing it under a modern rule of law. Deities are legally treated as minors and remain under the guardianship of humans enjoying rights to manage their affairs. It is assumed that the affairs of a deity cannot be separated from actions of humans associated with it.
Allegations of misuse of deities’ properties by rival groups have been quite common and the Indian state has often intervened in these feuds via its administrative and juridical offices.
The history and affairs of Ramlalla Virajman are fundamentally different from other deities that enjoy juridical personality. Ramlalla entered the legal realm in 1989 as a party to the ongoing civil suit over the land of the Babri mosque. If the idols placed surreptitiously inside the mosque in 1949 are taken to be the material representation of this deity, then the first public act done in its name is covered in illegality.
A grand temple is imagined in its name, but it has no legal property till date for whose upkeep a juridical personality can be awarded. Believers, of course, have all rights to have faith in it. No juridical authority is needed for this. A juridical authority was desired by a section of its followers so that they can enter into an ongoing suit and build a temple at the location of the Babri mosque.
However, the court judgment treats the issue of juridical authority of this deity without any investigation of the intentions its followers. It is as if the juridical character of the deity exists above the law. Just the believers’ faith, without any property in its name, is seen as enough. Illegal actions done in its name do not matter. It is exempted from the requirement of limitation—precisely the reason for which Nirmohi Akhara, a litigant in the original suit—was barred.
The separation of the grant of juridical authority to this deity from affairs of humans associated with it is ominous. This opens the floodgates for any group of people demanding a juridical status for their favoured deity, and then pushing their murky agendas legally behind the divine status of the deity.
In fact, the court verdict takes the alienation of Ramlalla from the affairs and actions of its believers a step further. It asks the Republic of India, the sovereign power of the country, to take care of building a temple for the deity. In the same breath, the judgment also asks the Indian state to grant six acres of land to Muslims for a mosque. These demands take country dangerously close to feudal polities, where the sovereign power was almost always associated with one faith, while the decent ones among them—like the Mauryan ruler Ashok or the 16th-century Mughal ruler Akbar—also took care of minorities.
A fundamental difference between feudal polities and modern democratic states is the recognition of secular values of freedom and equality of every human. Under feudal polities, humans existed primarily as members of communities. Modern democracies, on the other hand, are premised upon the personal autonomy of every human as a moral agent. No Khap panchayat in a modern democratic polity can legally prevent two young people to marry according to their choice.
The understanding and practice of secularism in India has suffered from many blind spots. Lack of clarity about the necessity of a secular public ethic for democracy is the most prominent of these blind spots. These have permitted opportunistic compromises with communal forces of all communities in the name of pragmatic peace and communal harmony. While the Supreme Court verdict continues in the same vein, it has also broken new slippery ground towards majoritarian fascism. It is high time people of India unequivocally assert their robust secular common sense against the unprincipled secularism of Indian statecraft.
The author teaches physics at St Stephen’s College, Delhi.