Guest post by HILAL AHMED
There are three areas which I think we need to underline.
A. Technical problem: The question of applied principles
I ask a very fundamental question: How could a modern secular judiciary- technically an institutionalized ‘interpreter’ of the Constitution- determine the legal disputes related to religious places of worship on the grounds of ‘faith-based’ evidences?
All the three judges seem to recognize the fact that the Hindu beliefs should be (must be) taken as legal facts. Interestingly, these beliefs are supported by archeological report of 2003 to form an argument of judicial nature.
However, and quite astonishingly, the Sunni Wakf Board’s (SWB) case was dismissed on legal-technical grounds following a very mechanical interpretation of the Limitation Act.
But for Nirmohi Akhara and VHP case (referred as Ram Lalla virajman) the principle of faith was given primacy and in order to substantiate it further ASI report which is full of contradictions, is expanded to arrive on a conclusion.
In this sense, the VHP argument is taken as an ‘exception’ to expand the available legal interpretations. On the contrary, the SWB case is not considered as ‘exceptional’ and usual legal norms are applied. This leads us to second problem:
How and why the judiciary takes two very different principles to respond to the questions framed by the two conflicting parties?
These two points reminds us the three layered argument of Hindutva: faith– archeology–justice.
In fact, Uma Bharti said yesterday that this is the first time in the history of world that a faith is legitimated by a court of law.
[“Happiest moment of my life: Uma Bharti on Ayodhya verdict”, PTI. Bhopal, Sep 30 (PTI): Former BJP leader Uma Bharti today termed the Allahabad High Court’s verdict on Ayodhya title suits as the happiest moment of her life, saying it has proved that Lord Ram was born at that particular site in the temple town. “This (Ayodhya verdict) is the happiest moment of my life as the High Court has put its seal of approval on a matter of faith which was a fact for us that Ram Lalla was born at that particular site,” Bharti told reporters at her residence soon after the court verdict.]
B. Possible legal-political Implications
1. Indo-Islamic Monuments: It is important here to look at the implication of this case on these sites. I ask: What about the monuments which are ‘Islamic’ but are protected merely as dead entities because there is no religious worship is permitted?
It is true that 1991 Act in relation to the protection of the religious places of worship very categorically sets out 15 August 1947 as a date to fix the religious nature of all religious places of worship.
But we have to keep in mind that this Act does not apply on Protected Monuments of National Importance.
If the Ayodhya judgment is read in the light of this important clarification, it would be entirely possible to expect the Hindutva claim on declared monuments, which technically are conserved as ‘dead sites’.
2. The second implication is related to Wakf. The question of possession is important here. The court did not look at the issue of forced conversion of a religious place of worship. It is important to remember that Sachar report found that adverse possession of Wakf properties has been an important problem.
I think it would be good if we look at what Sachar commission says. According to the report,
There are more than 4.9 lakh registered Wakfs spread over different states and union territories of India3. Large concentration of the Wakf properties is found in
West Bengal (148,200) followed by Uttar Pradesh (122,839). Other states with a sizeable number of Wakfs are Kerala, Karnataka and Andhra Pradesh… If these properties
are put to efficient and marketable use they can generate at least a minimum return of 10 per cent which is about Rs. 12,000 crores per annum. (p, 240)
it further notes:
Encroachments on the Wakf properties are made not only by private persons but also by the government and its agencies as was brought to the notice of the Committee across the country. The encroachments are in two forms – (1) an absolute usurpation of property with no rents or other payments of any sort; and (2) those where the occupying party pays a nominal rent which has not been revised for decades. The number of private encroachments is very large. (p. 242)
In this context, by implication of the Ayodhya judgment, if the Wakf properties which are not religious places of worship are encroached upon by non-Muslims including the state, and this possession (which by technically definition is an adverse possession) continues for a considerable period of time, there is no legal scope for Wakf boards or Mutawwalis to expect any exceptional treatment in relation to Wakf properties. Thus, the question arises:
What should be the role of the government in maintaining the legal-philanthropic character of wakfs?
Sachar commission also pointed out
Removal of Avoidable Judicial Dichotomy: Amendment of Wakf Act Section (6) sub-section (1) : The Supreme Court in Board of Muslim Wakf, Rajasthan vs Radha Kishan and Others stated that where a non-Muslim is in possession of a certain property his right, title and interest therein can not be put in jeopardy merely because the property is included in the list of Wakfs. Such a person is not required to file a suit (within a period of one year) for declaration of his title, as required in the Wakf Act. That is to say, the special rule of limitation laid down in the proviso to sub-section (1) of Section 6 is not applicable to non-Muslims. Such interpretation is detrimental to the interests of Wakf and may well tend to encourage encroachments. Section 6 may therefore be amended to avoid the confusion and the amendment should be given retrospective effect from the date of notification of the property as Wakf. (p. 252)
It further recommended:
The definition of ‘Encroacher’ needs to be inserted in Section 3. This definition should say that ‘Encroacher’ means “any person occupying the Wakf premises without the authority of law and includes a person whose tenancy, lease or license has expired or has been terminated by
the Board, or who has altered the property leased out or occupied by him without the prior written permission of the Wakf Board concerned”. The inclusion of this definition will help the Wakf Boards in removing encroachments. Secondly, a person occupying the Wakf premises should be
included in the definition of “person interested”. Thirdly, the “Wakf premises” should be defined to mean “any Mosque, Graveyard, Mazar, Takiya, Eidgah, Imambara, Dargah, Khanqah, Maqbara, Anjuman and land appurtenant or
belonging to them, the property dedicated for their maintenance, the property purchased from their income, the land, garden, well, baoli, school, hospital and other institutions dedicated as Wakf and the passages used leading to the Wakf premises”. This definition will help in the proceedings under Section 54, for removal of unauthorised occupants of Wakf property.
This question is also very important because the government is planning to bring a new Wakf law.
C. Move forward but where?
We have been suggested that we must move forward. Interestingly, this suggestion came from two very different political camps– the rightists and the so-called secularist.
(a) RSS’s chief said “The court verdict should not be seen as anybody’s victory or defeat…Now, its time for everyone to forget the bitterness of past and all should come forward and demonstrate a national unity, ”
(b) Congress: “The judgment that was keenly awaited, that is important for the whole Indian society, that was very sensitive, we should all welcome it,” the AICC general secretary Janardan Dwivedi told reporters in Delhi immediately after the judgment was announced in Lucknow.
(c) Left: The Left parties welcomed the judgment but the CPM said that the judicial process should go on and energy should not be wasted in settling the matter outside the courts.“In our Constitutional, secular, democratic system, the judicial process that includes recourse to the Supreme Court should be the only way to resolve the issue,” a party statement said. However, it added that “there may be questions on the nature of the verdict” after it was fully studied. The party has appealed to people to maintain peace and communal harmony and not fall prey to any provocations.
Despite echoing various ideological points, these statements are trying to interpret the judgment as a kind of solution. This is problematic.
If we try to solve this case with a kind of quick-fix approach, we might not be able to address a series of unwanted and disturbing questions, which are there in the public discourse but due to lack of political agency are not getting translated either into grievances or claims.
This is precisely because all the political actors are not keen to work as organic intellectuals of some kind.
For example, BJP-RSS-VHP do not want to rest their long term politics on Ram temple; Congress is taking a kind of position it took in 1986-87; the so-called left-liberals are too taking a very essentialist rigid secular position. The Muslim groups are well-settled in their own political domains. In my onion, these actors will respond slowly and gradually. However, this does not mean that they would not have a politics around it, but the nature this politics, I expect, would be entirely different from the politics of secularism/communalism we have witnessed in last three decades.
I am not for in favor of stretching the BM/RT case. I value the significance of communal harmony. But, I also would like emphasis three points:
1. The question of legal principle: In my opinion, the BM/RT issue is not merely a question of a mosque/temple; rather it is a question of legal principles by which rights of religious communities and conflict over religious places of worship could adequately be addressed.
2: The political readings of law: The sphere of law, particularly the legal judgments, are always seen as a potential resources for politics. Political actors articulate their claims in a language of law and justice and at the same time use legal gaps for all kind of political mobilization. Hindutva politics is a very good example in this regard. So, my argument is that we need to read the judgment critically so as to make sense of the kind of political trajectory it might take.
3.The question of political maturity: The manner in which this judgment is received, is quite problematic. There is, it seems, a consensus that “we as a nation must act maturely”.
I read this term maturity in relation to given meanings of development and imposed notions of modernity. Maturity in this sense refers to economic growth, shining cities and MNCs driven globalization. Villages/countryside has no place in this imagination.
However, we have to remember that urban poor and villagers are not part of all this. Villages are burning; floods, farmer suicides, acquisition of agricultural land for SEZ etc. are making life very difficult. In such a scenario, this kind resentment might get various shape. So, I strongly believe that reading the judgement out of context will be politically suicidal for all those who really want to create an egalitarian society in India.