Punishing victims, rewarding perpetrators: The Supreme Court and its creative contortions

“The attempt to abrogate Article 370 is likely to meet its end in the Supreme Court”. That’s a line from a column I wrote after the Indian government radically changed the status of Jammu and Kashmir in August 2019. The court took four years to hear the case despite the crucial constitutional questions raised. By the time the verdict was ready to be pronounced in December 2023, I had changed my mind about the likely outcome. To quote Chief Justice DY Chandrachud’s favourite singer-songwriter, you don’t need a weatherman to know which way the wind blows.

While the practical effect of the Article 370 judgement appeared predictable, I was interested in the reasoning the bench would use to support the abrogation, for this is where judges had shown true creativity in the recent past.

In a case related to the change in government in Maharashtra, a bench of Chief Justice Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha found that the Maharashtra governor had not acted in accordance with the law in calling for a floor test. Yet, the court refused to reinstate former chief minister Uddhav Thackeray, citing the fact that he had resigned instead of facing that same floor test.

The new state government led by Shiv Sena faction leader Eknath Shinde that came into existence as a direct consequence of the illegality was permitted to continue undisturbed.

I assumed the Article 370 verdict was going to need a lot more imagination because of the inherent protections enjoyed by that section of the Constitution. Article 370, according to its third clause, could be declared inoperative by the president only with the consent of Kashmir’s Constituent Assembly. Since the Constituent Assembly had been dissolved decades previously, nullifying Article 370 was basically impossible.

Both the Jammu and Kashmir High Court had as recently as 2015 and the Supreme Court of India in 2016 held that Article 370 was a permanent feature of the Indian Constitution despite being located within the section dedicated to “Temporary, Transitional and Special provisions”.

Faced with this insurmountable obstacle, the Indian government had taken a crafty path towards abrogating Article 370 through two Constitution (Application to Jammu and Kashmir) Orders (CO 272 and CO 273). As I wrote in my column about the subject, “Instead of going at Article 370 directly, the Presidential order amended Article 367, which defines how constitutional provisions are to be interpreted”.

The danger in this approach, as I saw it, was that, “If a government can produce re-interpretations of the Constitution that state that ‘cat’ now means ‘dog’… there is no telling where it will lead us, without even the need to declare an Emergency.”

The five-judge Constitution Bench comprising Chief Justice Chandrachud and Justices SK Kaul, Sanjiv Khanna, BR Gavai and Surya Kant concluded that Constitution Order 272 did, indeed, misuse Article 367. In their verdict, they wrote, “Paragraph 2 of CO 272 by which Article 370 was amended through Article 367 is ultra vires Article 370(1)(d) because it modifies Article 370, in effect, without following the procedure prescribed to modify Article 370. An interpretation clause cannot be used to bypass the procedure laid down for amendment.”

Most observers would have said before the case was decided that, should the court hold the Indian government acted unconstitutionally in using the interpretative powers of Article 367 to revoke Article 370, it would lead to the striking down of the abrogation. But those observers, myself included, underestimated the inventiveness of the Supreme Court and its willingness to bypass precedent.

The judges declared that the part of the Indian Constitution least amenable to abrogation was in fact the easiest section of them all to revoke. As mentioned earlier, Article 370 (3) stated that Article 370 could be altered by the president in conjunction with the Kashmir Constituent Assembly. In the court’s view, the fact that the Constituent Assembly no longer existed did not alter the president’s powers which were, in fact, increased manifold because they could be exercised unilaterally following the Constitutional Assembly’s dissolution.

Abrogating Article 370 did not require the consent of Jammu and Kashmir’s Legislative Assembly, the closest contemporary counterpart of the extinct Constituent Assembly. It did not need an amendment of the Constitution following the procedure described in Article 368. It did not require even a parliamentary vote. All that had been necessary all these years was a statement from the President that Article 370 stood abrogated, it said.

As it happened, Constitution Order 273, the follow-up to Constitution Order 272, contained exactly such a statement. Neither the government nor its supporters had claimed in public or argued in court that the President had the unilateral right to abrogate Article 370. That was an idea the Supreme Court bench came up with on its own as an alternative buttress for Constitution Order 273 after it dismantled the government’s own scaffolding which was Constitution Order 272.

The case that brought home to me how decisively the winds of Indian jurisprudence had shifted related to the long-running dispute over the site of the now-demolished Babri Masjid in Ayodhya. The final effect of the Supreme Court’s judgement, pronounced in November 2019, is taking shape now with the inauguration at that site of the half-built Ram Temple, which feels like the pyre of India’s secular polity being lit.

Labelling the dispute as one between “Hindus” and “Muslims” (a categorisation I will follow for convenience), the Supreme Court panel of Ranjan Gogoi, who was chief justice then, and Justices SA Bobde, Chandrachud, Ashok Bhushan and S Abdul Nazeer awarded the entire area under dispute to the Hindus. The ruling Bharatiya Janata Party can uncontroversially be identified with the Hindu side, being the main proponent of the Ram Temple cause over the past decades alongside the larger Sangh Parivar.

To understand what a feat of creativity was required to rule in favour of the Hindus, it is worth placing the Supreme Court’s verdict in context of an earlier judement from 2010 pronounced by the Allahabad High Court. The two central contentions of the Hindu side were that the Babri Masjid was located on the spot where Ram was born and was built after demolishing a Ram temple that had previously existed there.

The majority verdict of Justices Sudhir Agarwal and Sharma accepted both these positions and added for good measure that the mosque contravened Islamic tenets. Based on this reading, the High Court divided the land in three parts (the tripartite division was accepted by the panel’s third judge Justice SU Khan who produced a different rationale in his own judgement).

The site of the Ram Lalla idol (placed surreptitiously within the premises on the night of December 22, 1949) was awarded to the party representing Ram Lalla Virajman (the installed Infant Rama deity). The Nirmohi Akhara was to receive the so-called Sita Rasoi and Ram Chabutara, and the Uttar Pradesh Sunni Central Waqf Board, which had held the land title since 1944, the rest of the plot. All three parties appealed the verdict.

The Allahabad High Court accepted every contention of the Hindus but did not give them what they wanted, which was the entire plot of land. The Supreme Court rejected every contention of the Hindus but gave them all they asked for.

On the issue of the birthplace of Ram, the Supreme Court verdict stated, “Title cannot be established on the basis of faith and belief…The dispute is over immovable property. The court does not decide title on the basis of faith or belief but on the basis of evidence.”

The court rejected contentions that the mosque had been built after demolishing a temple: “No evidence is available in a case of this antiquity on (i) the cause of destruction of the underlying structure; and (ii) whether the pre-existing structure was demolished for the construction of the mosque.” It also dismissed the idea of the edifice being un-Islamic: “The existence of the structure of the mosque until 6 December 1992 does not admit any contestation. The submission that the mosque did not accord with Islamic tenets stands rejected.”

Further, the court acknowledged that the structure was a Muslim place of worship throughout the colonial period: “There is no evidence to establish that the Muslims abandoned the mosque or ceased to perform namaz in spite of the contestation over their possession of the inner courtyard after 1858. Oral evidence indicates the continuation of namaz.”

The verdict chastised the Hindu side for repeated illegal incursions and hostile acts: “The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law.” As a result of these actions, it said, “The Muslims have been wrongly deprived of a mosque which had been constructed well over 450 years ago.”

All this appears a complete victory and vindication for the Muslim side. But the court found an ingenious way to take the land away from those that its own verdict painted as “wrongly deprived” and give it to those responsible for repeated “damage”, “desecration” and “destruction” in “serious violation of the rule of law”.

How was this task of punishing victims and rewarding perpetrators achieved? Through the assertion that there was insufficient proof of Muslim ownership of the site before 1857. “As regards the inner courtyard, there is evidence of a preponderance of probabilities to establish worship by the Hindus prior to the annexation of Oudh by the British in 1857. The Muslims have offered no evidence to indicate that they were in exclusive possession of the inner structure prior to 1857 since the date of the construction in the sixteenth century.”

On the basis of this, “the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims”.

This was a bewildering argument. To begin with there seem to be two different standards applied to Hindus and Muslims, with Hindus only requiring to demonstrate worship prior to 1857 on a preponderance of probabilities while the Muslims were asked for evidence of exclusive possession.

Secondly, given that the mosque was built in the Mughal era, was mentioned in travelogues and chronicles in the 18th and 19th centuries, continued to be well preserved for centuries, was located in an area ruled by Muslim kings for the entire period between the time of its construction and the rise of British rule, and was recorded as a place of Muslim congregational worship by British officials in the mid-19th century, surely it could be asserted on a preponderance of probabilities (the same standard the Supreme Court used for the Hindu side’s claim, which decides whether something is more likely than not, as opposed to “beyond reasonable doubt” which carries a far higher burden of proof) that the Muslims were “in exclusive possession of the inner structure prior to 1857”.

Neither the Nirmohi Akhara nor the representatives of Ram Lalla, nor their supporters among politicians and the media had, in the decades that the debate raged, argued that Muslims did not control the land from the time the mosque was built to the period when the dispute came to the notice of colonial authorities. It was granted as fact by the Hindu side and not something anybody considered relevant to the debate.

The Babri Masjid decision inaugurated what appears to be a pattern in Supreme Court verdicts, although the sample size of three I have provided might be too small to say for certain. In each of the three judgements, the court berated the government side, or the party favoured by the government.

The governor of Maharashtra was decreed to have illegally ordered a floor test. The Central government was judged to have acted unconstitutionally in using the interpretative aspect of Article 367 to abrogate Article 370. The Hindu side in the Babri Masjid dispute was said to be misguided in basing its claim on faith, erroneous in its contention that the mosque was built on the ruins of a demolished temple, and criminal in damaging the mosque in 1934, smuggling in an idol in 1949 and destroying the structure in 1992.

In all three cases, however, the government ended up on the winning side based on stances that it did not itself take and claims that it did not itself make. The Hindus were granted all the disputed land in Ayodhya because the court was insufficiently convinced of possession by Muslims prior to 1857. The Eknath Shinde administration stayed in power because Uddhav Thackeray refused to participate in an illegitimate floor test. And Article 370 remained abrogated because the president apparently had the power to rescind it unilaterally.