Opinion: The Supreme Court should not deliver its judgement on Ayodhya before the 2019 election

Uttar Pradesh Chief Minister Adityanath has chosen to set aside his concern for governance and visit Ayodhya on October 18. On that day, he and his ministers, with Uttar Pradesh Governor Ram Naik in attendance, will celebrate Chotti Diwali in the temple town, which will be decorated and illuminated, presumably at state expense.

Adityanath’s Diwali party can be seen as a dress rehearsal for 2018. That is when many followers of Hindutva expect the Supreme Court to allow a Ram Temple to be built on the spot where the Babri Masjid stood in Ayodhya until it was demolished on December 6, 1992, by a mob moblised by the Bharatiya Janata Party. Some Hindus believe that the mosque was constructed over the exact site where the god Ram was born.

Although the Babri Masjid-Ram Janmabhoomi dispute has been festering since the late 19th century, it took a dramatic turn on the night of December 22-23, 1949, when an idol of Ram Lalla (infant Ram) was smuggled into the Babri Masjid. From 1950, a clutch of civil suits was filed over the ownership of the site.

On September 30, 2010, a three-member bench of the Allahabad High Court delivered a judgement on the title suits, splitting the 2.7 acres of the disputed site three ways – one-third each to Ram Lalla and the petitioners Nirmohi Akhara and Sunni Waqf Board. However, the Supreme Court stayed the judgement.

For seven years, the 13 appeals and cross-appeals related to the Ram Janmabhoomi-Babri Masjid title dispute remained in limbo in the Supreme Court. On August 11 this year, a three-member bench headed by Dipak Misra, now Chief Justice of India, ordered that the final arguments in the case should begin from December 5, without adjournments.

Misra is to retire on October 2 next year, and it would seem that he hopes to deliver the verdict before that. But creating the architecture for a speedy hearing – a noble intent in most circumstances – will not be easy, considering that the court faces the onerous task of translating around 8,000 pages of documentary exhibits from eight languages.

Should the Supreme Court indeed deliver its judgement on Ayodhya next year, it would come just months before the 2019 Lok Sabha election. This could create an emotive religious issue that the BJP could use as a bulwark against the rising disquiet over the economy and social conflicts.

It was BJP leader Subramanian Swamy who guided, so to speak, the Unseen Hand of Destiny to bring the Ayodhya dispute out of the deep freeze. He asked the Supreme Court to allow for the “rebuilding of the Ram Temple” so that he could exercise his fundamental right to worship Ram Lalla without impediment. Currently, in Swamy’s view, there are impediments aplenty – the facilities for pilgrims at the site are rudimentary and, worse, they can worship Ram Lalla only from a distance.

Whose rights?

It is contentious whether the right to worship can be claimed on a property in dispute or belonging to someone, let alone a site where a place of worship was demolished to usurp it. This, perhaps, could have been grounds to dismiss Swamy’s application outright.

Nevertheless, in February 2016, the Supreme Court permitted Swamy to intervene in pending appeals related to the title suit. Obviously, Swamy’s right to worship cannot be enforced unless the Supreme Court decides the Ram Janmabhoomi-Babri Masjid title dispute and clears the way for a temple to be built. It gave scope to Swamy to press for an early hearing of the Ayodhya case. The Supreme Court had rejected his plea twice before Misra ordered for the final arguments to begin from December 5.

It is a mistake to believe, as Swamy seems to, that the title suit concerns just the rights of parties to the dispute. “Of course, I’m not connected with the petty issue of property ownership,” he has been quoted as saying. “All I am concerned about is my fundamental right to worship.”

However, as a Supreme Court judge noted in 2010, the title suit relates to the rights of communities, not just of individuals. When the Allahabad High Court was to pronounce its verdict on the Ayodhya title suit in 2010, a man named Ramesh Chandra Tripathi petitioned the Supreme Court to give peace one final chance. His petition was heard by a bench of Justices RV Raveendran and HL Gokhale. Raveendran was not in favour of deferring the Allahabad High Court judgement. But Gokhale wanted to seek the response of the disputants to Tripathi’s plea. “The verdict would establish the rights of two communities and not individuals,” Gokhale reasoned. “Those who are not parties to the suits will be the real sufferers.”

Gokhale said he was aware that attempts to reach an out-of-court settlement post-1992 had failed. “Let it fail once more,” he added. “The consequences are not for you [disputants] but for ordinary people.” The High Court was asked to defer its judgement by a week.

The “consequences for ordinary people” was Gokhale’s allusion to the horrific communal violence unleashed by the BJP’s Ram Janmabhoomi movement. When BJP leader LK Advani undertook a rath yatra from Somnath to Ayodhya in 1990, he left behind a trail of death until he was eventually arrested in Samastipur, Bihar.

According to the Online Encyclopedia of Mass Violence maintained by the Paris Institute of Political Studies, 46 people died in communal violence in Karanataka, 50 in Jaipur, 134 in Hyderabad. Uttar Pradesh was particularly affected – 42 people died in Colonelganj, 40 in Bijnor, 92 in Aligarh, 20 in Kanpur, 74 in Khurja, 30 in Meerut. This isn’t even an exhaustive list.

In the wake of the demolition of the Babri Masjid in 1992, Mumbai witnessed two rounds of rioting that claimed nearly 1,000 lives. In addition, 175 people died in riots in Madhya Pradesh, 60 in Rajasthan, 73 in Karnataka, 35 in Kolkata, 200 in Gujarat’s Surat, 48 in Sitamarhi: the list goes on and on.

Likely consequences

Given the dark past of the Ayodhya dispute, it does seem unwise of the Supreme Court to pronounce judgement on it in the months preceding the 2019 Lok Sabha election. Typically, in an election year, politicians tend to exploit even relatively minor issues to garner votes. It isn’t hard to imagine what might follow the judgement on the Ayodhya dispute.

Should the Supreme Court allow the Ram Temple to be built, the Sangh Parivar will be triumphant, straining relations with Muslims. If the Supreme Court decides to forbid the construction, Muslim triumphalism will be no less provocative. It will certainly aggravate the hurt of those Hindus for whom, because of decades of propaganda or otherwise, it is an article of faith that Lord Ram was born exactly where the Babri Masjid once stood.

As such, the Sangh’s traditional position has been that the matter of Ram’s birthplace is a matter of faith, beyond the jurisdiction of the court. There is no guarantee that it will not revert to this position.

For the Sangh, therefore, an adverse judgement would be no less politically advantageous. It can turn the 2019 election into a referendum on Ayodhya, asking people to give the BJP a brute majority to enact a law to supersede the Supreme Court’s judgement to build the temple.

Either way then, the Ayodhya judgement will seem unfair to many. It will introduce an emotive religious issue against which the BJP’s competitors will have no counter. It will distract people from judging whether the Narendra Modi government had delivered on its agenda of development and good governance. It will prompt the Opposition to think, rightly or wrongly, that the Supreme Court has handed the BJP a trump card.

Lesson from America

Perhaps it would be useful for Chief Justice Misra to recall the consequences of the United States Supreme Court’s judgement in Dred Scott vs Sandford in the 19th century. At that time, the balance of power in the US Congress was maintained through a compromise – the Missouri Compromise – which provided for the nation to consist of an equal number of slave states and free states, where slavery had been abolished. New states were admitted into the Union in pairs: for every free state there had to be a slave state.

But this compromise became increasingly untenable as the borders of the United States expanded westward. The abolitionists’ campaign had struck a chord. The idea of popular sovereignty demanded that the people should decide whether the state in which they lived should join the Union as a free or slave state. It was in this context the Dred Scott case emerged.

Dred Scott was a slave whose owner took him to a free state. Under the law, a slave could buy his freedom if he had lived in a free state for a specified time. When Scott’s master died after returning to his home state, a slave state, his wife inherited Scott. He wanted to buy his freedom but the offer was turned down, prompting him to file a suit in 1846. He lost the case. He filed another case in 1850 and won freedom, but the Missouri Supreme Court reversed the judgement in 1852.

Scott then filed a suit in the federal circuit court of St. Louis in 1853. He lost the case on a technicality. His lawyers appealed to the Supreme Court, where a bench of nine judges headed by Chief Justice Roger B Taney heard the arguments. On March 6, 1857, the Supreme Court, by a majority of seven to two, ruled against Scott.

Delivering the majority decision, Taney held that Scott, being a Black man, had no rights. “They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race…that they had no rights which the White man was bound to respect.” He said that since the Black Americans were mere property, their owners could not be deprived of their possessions without due process of law, apart from asserting that the US Constitution affirmed the principle of slavery.

Historians believe Taney’s motivation was to turn the contentious issue of slavery into a settled matter of law, thereby bringing to an end the political competition between the free states of the North and the slave states of the South. Quite the contrary happened; the chasm between the North and the South widened, the Democratic Party split, and the abolitionists called for the verdict to be defied. Ultimately, the southern states seceded, plunging the United States into a bloody civil war.

There are distinct echoes of the Dred Scott case in the Ayodhya dispute. For one, Taney’s assertion that Black Americans were “beings of an inferior order” sounds strikingly similar to that of the Allahabad High Court’s judgement. It, for example, awarded the area under what was once the central dome of the Babri Masjid to the idol of Ram Lalla because it was where Lord Ram was born “as per faith and belief of Hindus”. Both assertions are rooted in faith, which has never been regarded as a basis for judicial decisions.

For the other, Dred Scott shows judges are embedded in their socio-political context. They must take into account the fallout of cases that are political in nature. As American Civil War historian Don E Fehrenbacher noted, “Every one of the nine justices must have realised by this time [December 1856] that the Court had an explosive package on its hands. Many more people were now aware of what might be at stake in one Negro’s suit for freedom.”

This is as true of the Ayodhya dispute. It is an explosive issue, involving more than just the rights of disputants and Swamy’s right to worship, which in one form or another can already be exercised at the site. The Dred Scott case illustrates that a judicial verdict, however well-meaning, does not necessarily bridge the chasm between groups of people who differ over a contentious issue. A political rift requires a political solution, not a judicial one.

In the end, Misra’s noble intent to expedite the resolution of the Ayodhya dispute could well leave behind a bitter legacy.

Ajaz Ashraf is a journalist in Delhi. His novel, The Hour Before Dawn, has as its backdrop the demolition of the Babri Masjid.