On a wing and a prayer

The SC judg­ment on the Babri Masjid-Ram Jan­mab­hoomi case casts the spot­light on mi­nor­ity rights

DNA Sunday (Mumbai) - - OPINI N - PRAB­HAT SHUNGLU

By re­fus­ing to re­fer the mat­ter of re­vis­it­ing the 1994 Con­sti­tu­tion bench judg­ment to a larger bench, the Supreme Court has set the stage for re­sump­tion of hear­ing on the ti­tle suit over the dis­puted Babri Masjid-Ram Jan­mab­hoomi site in Ayodhya. The apex court has set the fi­nal date for the com­mence­ment of hear­ings in the last week of Oc­to­ber.

The court in its 2-1 judg­ment re­fused to re­view the Con­sti­tu­tion Bench’s ob­ser­va­tion that a mosque is not in­te­gral to Is­lam. The pe­ti­tion­ers had con­tended that the sub­se­quent judg­ment by the high court — refer­ing to the 2010 Al­la­habad High Court’s ver­dict that di­vided the dis­puted Ayodhya land equally among the Nir­mohi Akhara, Ram­lala Vi­ra­j­man and the Sunni Waqf Board — was in­flu­enced by the 1994 Con­sti­tu­tion Bench’s judg­ment to their dis­ad­van­tage; the fact that two por­tions of the dis­puted land went to the con­test­ing par­ties that rep­re­sented the sen­ti­ments of the Hindu com­mu­nity.

Thurs­day’s ma­jor­ity judg­ment, while re­ject­ing the plea for re­view­ing the 1994 ver­dict, made it am­ply clear that the ques­tion­able ob­ser­va­tions made in the Is­mail Faruqui case were “nei­ther rel­e­vant for de­cid­ing the suits nor rel­e­vant for de­cid­ing these ap­peals”.

But at the same time, the ma­jor­ity judg­ment by CJI Di­pak Misra and Jus­tice Ashok Bhushan also seem to dis­pel doubts, if any. The judges said, “The ob­ser­va­tion need not be read broadly to hold that a mosque can never be an es­sen­tial part of the prac­tice of the re­li­gion of Is­lam.”

It is at this in­ter­sec­tion of re­li­gion and le­gal­ity that the dis­sent­ing opin­ion of Jus­tice S Ab­dul Nazeer holds sig­nif­i­cance. Jus­tice Nazeer is not ten­ta­tive on the is­sue, rather con­fronts it squarely. He opines that the “ques­tion as to whether a par­tic­u­lar re­li­gious prac­tice is an es­sen­tial part of a re­li­gion is one which is to be con­sid­ered by con­sid­er­ing the doc­trine, tenets and be­liefs of the re­li­gion”.

Jus­tice Nazeer in­stead draws strength from the 1954 Shirur Mutt ver­dict by the Supreme Court. The Supreme Court had held that “what con­sti­tutes the es­sen­tial part of a re­li­gion is pri­mar­ily to be as­cer­tained with ref­er­ence to the doc­trines of that re­li­gion it­self”. Jus­tice Nazeer opines that even the Is­mail Faruqui case should be “brought in line with au­thor­i­ta­tive pro­nounce­ments of the Shirur Mutt case”. If the court held a mosque is not cen­tral to Is­lam, can it deny the fact that con­gre­ga­tional prayer is cen­tral to Is­lam? Where do such con­gre­ga­tions go to of­fer prayer if not in a mosque?

The ver­dict comes at a time when the rum­ble around the count­down to the gen­eral elec­tions next year is be­gin­ning to get nois­ier. Of course, the en­tire coun­try wants an early so­lu­tion to the Ayodhya im­broglio, and still, there are some like the BJP for whom this judg­ment couldn’t have been timed bet­ter. The early re­sump­tion of hear­ings shall keep their hopes alive of draw­ing max­i­mum mileage out of the mandir-masjid is­sue con­sid­er­ing they have hit a rough po­lit­i­cal patch re­cently with l’af­faire Rafale de­vel­op­ing a snag even be­fore take-off.

As it is, there is no dearth of ar­gu­ments in favour of an out-of-court set­tle­ment. Gu­rus and god­men are be­ing em­ployed on track-II to chisel out the frame­work. And of course, these are also the very forces that are rar­ing to re­ject the court ver­dict if it went against them.

The im­port of the 1994 judg­ment, re­in­forced by a ma­jor­ity judg­ment on Thurs­day, may not have a bear­ing on the Ayodhya case as un­der­lined by the ma­jor­ity judges. But it has the po­ten­tial to res­onate with is­sues con­cern­ing mi­nor­ity rights in light of Ar­ti­cle 25 and 26 of the Con­sti­tu­tion. Par­lia­ment passes law and the ju­di­ciary is en­trusted with the right to in­ter­pret the law, but there is no deny­ing that it is only in the pub­lic do­main that all laws op­er­ate, func­tion and get tested.

In­ter­est­ingly, the two judg­ments throw up ref­er­ences to “sec­u­lar In­dia”, an idea that is con­tested, tossed around and dis­torted. It’s born and re-born in dif­fer­ent avatars on the streets of In­dia, which are be­com­ing dom­i­nant play­grounds for forces in­im­i­cal to the very idea of In­dia. Will it, then, not be in the spirit of rea­son and fair play to clear the air in a po­larised cli­mate when mi­nori­ties are looked down upon with sus­pi­cion and when ma­jori­tar­ian world­view has gained cir­cu­la­tion?

And who shall hold brief for Mus­lims torn be­tween the court ver­dict on the one hand and peo­ple like Haryana Chief Min­is­ter ML Khat­tar who doesn’t mince words when he says na­maz should be of­fered only in­side mosques and not in pub­lic places.

In view of the facts above, would it not have been in the fit­ness of things to dis­pel all doubts, and over­whelm­ingly so, about what place of promi­nence does a place of wor­ship hold for an ad­her­ent of any re­li­gion rather than be­ing am­bigu­ous about it? The larger is­sue also re­lates to the role of the ju­di­ciary, whether it can also dou­ble as the clergy in ad­ju­di­cat­ing on re­li­gious prac­tices that are non-dis­crim­i­na­tory and in larger so­cial in­ter­est.

So what hap­pens to the ap­pli­ca­tion of the Shirur Mutt judg­ment? Even in the Sabari­mala judg­ment de­liv­ered on Fri­day, the Supreme Court al­lowed tem­ple en­try to all women ir­re­spec­tive of age while re­fus­ing the con­tention of the devo­tees of Lord Ayyappa that they be­long to dif­fer­ent re­li­gious sect. The court em­pha­sised they fall un­der the broad Hin­duism um­brella.

Will we then hold dif­fer­ent yard­sticks to ad­ju­di­cate such cases of dif­fer­ent re­li­gious groups? Will such di­chotomy help the de­bate on Uni­form Civil Code get any­where, if at all? If the an­swer is a clear no, then per­haps Thurs­day’s judg­ment is just a comma, not a full stop to the en­tire de­bate that goes be­yond the so­cial and po­lit­i­cal ap­peal of Ayodhya judg­ment.

The writer is a se­nior jour­nal­ist

and author of News­room Live

The court in its 2-1 judg­ment re­fused to re­view the Con­sti­tu­tion Bench’s ob­ser­va­tion that a mosque is not in­te­gral to Is­lam

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