Harsh Mander: A judge guided by god, a case of constitutional morality, a ruling that failed India

In the history of free India, the Supreme Court of India has authored many momentous rulings. Some ushered in regimes of public interest litigation and social rights on questions such as bonded labour, informal worker rights, the right to food and education and the rights of homeless people. Others promoted rights and protection of women survivors of sexual violence and sexual harassment. Many upheld and safeguarded fundamental freedoms such as a free and independent media. In these and many different ways, the Supreme Court guarded and deepened India’s secular democratic Constitution.

The Supreme Court’s November 2019 decision to award the title in Ayodhya of a small piece of land in favour of the Hindu litigants was also momentous, but in a profoundly different way. On this land had stood a medieval mosque built by a military commander of the first Mughal emperor Babar from 1528-29, until it was razed by a frenzied mob in 1992. The marauding mob was cheered on by LK Advani and other senior leaders of the Rashtriya Swayamsevak Sangh and Bharatiya Janata Party. The court directed the Centre to constitute a trust to build at the contested site a temple to Ram, and with this gave a judicial stamp of approval by India’s highest court to the building of a Hindu temple at the site of the flattened medieval mosque.

This ruling finally brought the curtains down on a more than half-century-old fevered, virulent dispute that at moments even threatened to tear apart the country. The contest was first fuelled after independence when in 1949 a statue of Ram was surreptitiously introduced into the mosque. In the 1980s, the building of a grand Ram Temple at the site of the mosque became the focus of massive political and societal mobilisation by the BJP and the Sangh. BJP supremo LK Advani began a Rath Yatra from Somnath in Gujarat in 1990, travelling across India. This movement culminated in the demolition of the medieval mosque on December 6, 1992, in brazen and reckless defiance of constitutional responsibilities. The Rath Yatra and the demolition stoked rioting and extensive bloodshed in many parts of northern, central and western India.

It was clear to all that the Supreme Court was not simply deciding the title of a small patch of land not larger than two football fields in a small nondescript town. The case, and the long, twisty and blood-drenched trail that led to it, was in actual essence about whether the constitutional guarantees of equal rights to India’s religious minorities, particularly Muslims, would be defended scrupulously by the executive and courts, or in practice would they rule in favour of the Hindu majority and sentiment even if the law favoured the rights of Muslim litigants.

The 2019 Ayodhya judgement of the Supreme Court confirmed that there was no evidence that a Ram temple was demolished to build the Babri Masjid as the Sangh and the BJP claimed. But it problematically sidestepped the legal, constitutional and moral implications of effectively rewarding the parties responsible for the crime of the frenzied mob demolition of the mosque in 1992. Without the crime of this devastation – which many consider the most tragic day in free India after Mohandas Gandhi’s assassination – it would not have been possible for the Supreme Court nearly 30 years later to award the land where the mosque had stood for over 500 years for the building of a Ram Temple.

Up to now, it was unclear who actually authored the Supreme Court judgement, because it was – in pointed departure from customary practice – unsigned. In the last weeks of his term as Chief Justice of India, DY Chandrachud first came out as the author of the judgement. And along with this, he made a startling claim. He said he and his brother judges had heard the matter for three months but were still confused. At this time, he turned to his god, and his god guided him to write the judgement that he finally authored. He affirmed that he prays regularly, adding, “Believe me, if you have faith, God will always find a way.” The Press Trust of India quotes Chandrachud declaring, “Very often we have cases (to adjudicate) but we don’t arrive at a solution. Something similar happened during the Ayodhya (Ram Janmabhoomi-Babri Masjid dispute) which was in front of me for three months. I sat before the deity and told him he needs to find a solution.”

This raises a whole set of tangled and worrying constitutional questions. First, in times of confusion and doubt, judges need to be guided exclusively by constitutional morality and emphatically not their personal religious beliefs. In their historic 2009 judgement decriminalising homosexuality in the case Naz Foundation vs the Government of NCT, judges AP Shah and Muralidhar made an important distinction between public morality and constitutional morality. If these come into conflict, they underlined that in a secular democracy it is constitutional morality that must always prevail.

A judge is, of course, fully free to follow their religious beliefs. But the judge cannot declare that it was his religious belief that guided his judgement, especially when it concerns a dispute involving religious beliefs on both sides. This is even more grave in a ruling that has incalculable and permanent symbolic meaning for the constitutional rights of the religious majority and religious minorities.

The judgement, throughout its pages, speaks of the dispute as being between “the Hindus” or “the Muslims”. This it was not. On the one side was the Vishva Hindu Parishad, a militant Hindutva outfit and close affiliate of the Rashtriya Swayamsevak Sangh. In no way does this represent the Hindus at large. On the other side is the Uttar Pradesh Sunni Central Board of Waqf. There is no way that this outfit represents India’s 200 million Muslims.

The opening paragraph of the judgement also declares that the “Hindu community” believes that the disputed site was “the birthplace of Lord Ram, the incarnation of Lord Vishnu”. As I wrote at that time, “This is simply not true. Some Hindus believe that Ram was born at that precise location, and others do not. On what grounds does the court privilege one ‘faith and belief’ that Ram was born under the domes of the demolished mosque over the ‘faith and belief’ of innumerable other Hindus that Ram was born elsewhere?”

But if, indeed, this was a dispute between Hindus and Muslims as the judgement sees it, Justice Chandrachud’s declaration that he is a believing Hindu and was guided in the writing of his judgement by his god is even more problematic. How could he be guided by the divine on one side and ignore the divine of the other? Who he prays to is entirely his business. But, as Arghya Sengupta observes in The Telegraph, “when declared publicly, the indication that a judgement on a bitter communal issue was determined by the faith of the judge (in this case, a Hindu), rather than the dictates of legal reason does a grave disservice to the legitimacy of the rule of law and the Supreme Court as its protector”.

Three goals top the agenda of the BJP-Sangh in its determined bid to transform India from a secular democracy guaranteeing equal citizenship to people of every faith and identity, into a Hindu supremacist nation in which Muslims and Christians would be second-class citizens. The first is the abrogation of the special status to the only Muslim-majority state in India, Jammu and Kashmir. The second is the enactment of a Uniform Civil Code. The third is the building of a majestic Ram Temple at the site where the Babri Mosque stood for over five centuries. All of these, including the last of these, would not have been possible without being greenlit by the Supreme Court.

Deploying highly contestable arguments, the 2019 judgement handed the entire land, in favour of the Hindu litigants, to a trust established by the union government for the construction at that site of an imposing Ram Temple. It chose to ignore that the contested land had fallen vacant because of the 1992 mob violence that felled the mosque. This mass vandalism had defied every constitutional propriety and protection.

In the run-up to the 2024 general elections, on January 22, Narendra Modi donned the persona of prime minister, national Hindu head priest and monarch to preside over the consecration of the Ram Temple. Without changing the letter of the Constitution, the consecration of the Ram Temple with its defiantly Hindu religious symbolism marked the most audacious move so far by the Modi government to establish a Hindu Rashtra.

It is well-known that the BJP led by Modi is committed to installing in place of India’s secular democracy a Hindu supremacist nation. The people of India look with hope and trust toward the higher judiciary as the final defender and arbiter of constitutional rights and propriety. But its judgement in a dispute that became the ultimate test-case of the equal constitutional rights of Muslim minorities, many believe, has laid waste India’s constitutional pledges more almost than any other.

I wrote this after the 2019 ruling. This “was a dispute about what kind of country this is and will be in the future, to whom does it belong (and to whom it does not), and on what terms must people of different identities and beliefs live together in this vast and teeming land”. By handing over a site on which a mosque stood for more than five centuries, and which was razed by Hindutva mobs, to the Hindu litigants, the judgement failed to defend secularism, the rule of law and the constitutional rights of minorities.

In so doing, the Supreme Court profoundly failed the people of India.

And now the author of this judgement claims to have been guided by his Hindu deity.

Harsh Mander, justice and peace worker and writer, leads Karwan e Mohabbat, a people’s campaign to counter hate violence with love and solidarity. He teaches at FAU University of Erlangen-Nuremberg, and Heidelberg University, Germany; Vrije University, Amsterdam; and IIM, Ahmedabad.