BABARI MASJID

Government should First Reconstruct Babari Masjid

Raj Kamal Jha on Ayodhya Dispute

The United Front Government seems to be making a mess of things with Ayodhya.

What is the situation in Ayodhya? On the legal front, the three-judge special bench of the Allahabad High Court is expected to begin recording oral evidence in the batch of civil suits (soon). On the political front, despite the Congress-BSP alliance, the BJP is the only party in a position of strength before the elections; the VHP and the RSS have begun making disturbingly familiar noises over Kashi and Mathura. Mulayam Singh Yadav is alone and the Janata Dal is still testing the waters searching for allies. As for the Government, confusion is the buzzword. Home Minister Indrajit Gupta announces that the Ayodhya issue will be "settled" before elections in Uttar Pradesh; the CPI(M) says no, there should be no such time frame. A few days later, Prime Minister H.D. Deve Gowda meets Muslim leaders in Lucknow and says nothing is final yet, there could also be negotiations.

At the centre of this is the Government's Article 138(2) proposal. On the face of it, it seems reasonable and well-intentioned: refer the Ayodhya dispute to the Supreme Court under Article 138(2).

The Government's argument is that the issue is sensitive; has been hanging fire for decades; and therefore, the judicial process needs to be expedited. What better way to do this than to ask the highest court of the land to adjudicate? A closer look, however, shows that the Government's proposal could end up achieving exactly the opposite.

It will give the Sangh Parivar the fuel to stoke its Hindutva fire; if the suits are transferred to the apex court, Muslims will be denied the right of appeal. Moreover, so tortuous is the entire process that the proposal, if put into effect, is likely to get mired in a legal and legislative thicket. That will certainly undermine the progress already made in the high court. And at the end of it, even if all the hurdles are cleared, there's no guarantee that the Supreme Court will agree to take on the cases.

In December 1992 weeks after the demolition, the Narasimha Rao Government decided to acquire the site, abate all pending suits and refer, under Article 143(1), what was clearly a biased question to the Supreme Court: "Whether a Hindu temple or any religious structure existed prior to the construction of the Ram Janmabhoomi-Babari Masjid (including the premises of the inner and outer courtyards of such structure) in the area on which the structure stood?"

If the Government was really interested in finding a solution, argued the non-BJP opposition, primarily the Left parties, why did not it refer the pending suits to the Supreme Court under Article 138(2)? That way, the court would be seized with the real issue, 'not a question of dubious merit. At that time and during those circumstances, this stand had its appeal. For, it was certainly better than the Congress Government's politically suspect move. But circumstances changed in October, 1994.

The Supreme Court dismissed the reference and declined to go into the question. The majority ruled that the reference was "superfluous" and "does not require to be answered". The minority called it unconstitutional. All suits were revived and reverted to the Allahabad High Court. The majority upheld the acquisition of the site and appointed the Centre as the receiver till such time as the dispute was resolved. The minority was against the acquisition.

Once the suits were revived, circumstances changed and Article 138(2) was robbed of much of its relevance. But the UF Government seems to be stuck in a mental groove. In fact, the All India Babari Masjid Action Committee (AIBMAC) and the Babari Masjid Movement Coordination Committee have criticized the Government's proposal; the latter even demanded the dropping of that provision from the Common Minimum Programme. (The Sangh Parivar has also criticized it but for altogether different reasons: it is against any judicial solution for it sees Ayodhya as a matter of faith, not of law). Criticism of the Article 138(2) solution revolves around the crucial questions of process, time and constitutionality.

Let us assume the proposal weathers all this and Parliament passes the requisite legislation. Its constitutionality will most likely be challenged. First, on grounds of jurisprudence; that is, whether the law is valid under Article 138(2) since the article was meant for classes of cases, not transfer of disputes. Second, the denial of fundamental rights since the law will deprive the people of the right to appeal in a civil suit.

Adding yet another twist to the Government's stand is Deve Gowda's recent statement in favour of a negotiated settlement. It was during the talks in 1992 that the VHP had snubbed the AIBMAC saying that the question of handing over the site to the Muslims even if the verdict was in their favor "does not arise". Four years later, thee is not much evidence to show that the Sangh Parivar has had a change of heart.

What about rebuilding the mosque? That's one question that few in the Government want to confront. It seems to matter little to the United Front constituents that they got up in Parliament, one by one, to put up an impressive display of their secular credentials. In a way, Ayodhya was the pivot of their anti-BJP plank. And even if the court verdict goes against the Muslims, the mosque needs to be rebuilt since it was the mosque that was destroyed. Supreme Court advocate Rajeev Dhavan, who argued aspects of the case, wrote recently that the Government should, without delay, start the process of rebuilding the mosque. That is, if its "moral courage is not as supine as its political will". For, neither the Ayodhya Act nor the Supreme Court's 1994 ruling prevents it from doing so. The actual site can be fixed once the court rules on the claims. However, given the cynical criteria of realpolitik, if the United Front's secular coalition does not want its politics to be based on its principles, let it, at least, be based on procedure. Let the Allahabad High Court first decided.

(Source: The Indian Express, 17 July, 1996)