A temple is consecrated

On Friday, we published our first long-form profile of a retired Supreme Court judge. We hope that you can take 20 minutes to read Sushovan Patnaik’s absorbing story on Justice S.R. Bhat. Write to us with your thoughts! 

But this week’s desk brief is inevitably about a litigation that makes only a fleeting appearance in the Justice Bhat story. On Monday, the Ram Mandir will be inaugurated in Ayodhya, on the site where the Babri Masjid stood for more than 450 years before it was pulled down by a mob on 6 December 1992. It would be amiss for us to not remind our readers about the top court’s role in legitimising this moment in time. 

“The facts, evidence and oral arguments of the present case have traversed the realms of history, archaeology, religion and the law. The law must stand apart from political contestations over history, ideology and religion.” So proclaimed the judgement of the five-judge Constitution Bench led by then CJI Ranjan Gogoi, which on 9 November 2019, held that the disputed land belonged to Shri Ram Lalla Virajman, the infant deity. The Sunni Waqf Board was awarded five acres of land within Ayodhya. 

It was the final episode in a centuries-old battle centred on faith. As the ongoing litigations relating to mosques in Varanasi and Mathura show, it won’t be the last of the matters where the Court is called upon to adjudicate on faith-based contestations presented as property disputes. If the Ayodhya title dispute is anything to go by, both myth and archaeological evidence will form part of the evidence docket.

In all these cases, can the Court really ensure that the law “stand[s] apart from political contestations over history, ideology and religion”? For instance, in the Ram Janmabhoomi litigation, why did the judges decide to avoid attributing the two opinions to individual authors, as is the practice? 

More recently, CJI D.Y. Chandrachud, who was part of the Bench in the case said, “We all decided unanimously that this will be a judgement of the court…the idea of doing so was to send a clear message that all of us stood together not only in the ultimate outcome but in the reasons indicated in the judgement.” 

The heart of the case was a title suit, an objective juristic determination of who has possessory rights over a piece of immovable property. The Court framed 16 issues on the maintainability of the suits, determination of title, and possession rights over the inner and outer courtyards of the disputed land. Finally, on the preponderance of probabilities, it held that “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.” 

That line in the judgement is what a couple of centuries of contested history came down to—the erecting of a ‘Ram Chabutra’ in 1857 after the British divided the mosque with a railing to prevent communal violence; the first suit that was filed and dismissed in the late 1880s; the smuggling in of an infant Ram idol in 1949; the locking of the mosque gates; a civil court’s endorsement for Hindu prayer in the outer courtyard; the unlocking of the gates in 1986 to allow Hindus to pray in the inner courtyard; Advani’s rath yatra and the pulling down of the masjid in broad daylight; the 2003 excavation by the Archaeological Survey of India which suggested that the remains of a large, “ancient” structure predated the mosque. 

On paper, there was no grand constitutional question involved. But what was really at stake was a constitutional value, an amorphous spirit sought to be codified as part of the basic structure. Ultimately though, the secular spirit could not survive the onslaught of a political idea whose time had come, a force as solid and impenetrable as a consecrated brick. 

 -R. Sai Spandana, Associate Editor 

Cover image: Wiki commons. Modified by SCO. 

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