Minister for Human Resources Development and lawyer, Kapil Sibal, talks to Karan Thapar on how he views the issues arising out of the Ayodhya judgment and how the judgment has been received. The interview was broadcast over CNBC TV 18 on October 5. The following full transcript has been made available exclusively to The Hindu:
Let’s start with the way India has received the Ayodhya judgment. There was a certain amount of apprehension and concern in the run-up to it, but it seems that the judgment has been accepted and the nation has taken it in its stride. Were you surprised by this?
I’m enormously gratified by the fact that peace and tranquillity have prevailed and there is, by and large, a very mature response of the lay public... and I think partly because people want to move on, especially the young generation of India wants to move on.
So, is this response proof of the fact that India in 2010 is really a significantly different country to [what it was in] 1992?
Oh absolutely, without a doubt. And I think that as the years go by you’ll realise [that] issues of this nature will not find support among the lay public.
How much of that difference between 2010 and 1992 is because young Indians — and perhaps I should say young Muslim Indians in particular — have turned a chapter and decided that they want to go forward?
Most of India has turned a chapter. I don’t think we can talk about Muslims and Hindus. Most of India has turned a chapter because the young generation wants education. The young generation wants opportunities. The young generation wants to be part of the nation moving forward in the 21st century, and therefore these issues, according to the young, are not so relevant in that dream of being part of the new story.
In which case, was the apprehension and concern in the run-up to the delivery of the judgment mistaken?
Well it’s not a question of [being] mistaken. We don’t know what forces can actually... ultimately fuel a crisis.
So this was necessary caution?
So it was necessary caution, and I think it was wisely dealt with by the government.
Meanwhile, although everyone agrees that there are no winners and losers, and this is a continuing process that will culminate in the Supreme Court eventually… there have been certain Muslim voices of concern. Some have publicly expressed disappointment, others have expressed despondency. What would you say to them?
Quite frankly, I’m a little amused by this for the simple reason that I believe that in a judicial process you’ll have verdicts of this nature, and ultimately, unless the verdict attains finality, I don’t think one party should feel triumphant and the other party should feel despondent. Remember, many a time the trial court verdict is affirmed, or completely set aside. So we don’t know what the Supreme Court is going to do. So for one party or the other to feel sad or despondent or feel triumphant I feel is completely inopportune and shows a lack of maturity.
You’re suggesting that when this goes to the Supreme Court it could be affirmed, but equally it could also be completely set aside?
Absolutely, absolutely. That’s the judicial process. So what’s happening today is that some political parties are taking this to be the final verdict and therefore making public statements about things that they should not be saying — because we don’t know what the final verdict is going to be.
So even when Muslim voices express disappointment and despondency, you’re saying, “don’t be disappointed, this is not the final position, things could change dramatically”?
I’m saying don’t triumph or don’t be disappointed because we don’t know what the final position is going to be.
Meanwhile, L.K. Advani has told PTI that this is in his eyes vindication of his Rath Yatra of 1992.
Well, this is the exact point that I was making. Is it L.K. Advani’s belief, and does he know that the Supreme Court will affirm this verdict in its entirety? And if L.K. Advani believes that, then obviously, being a mature politician, I can’t say that years of experience have stood him in good stead... because many a time in the past the BJP has been thinking that the Supreme Court will do this and that and it has gone against what the BJP wanted.
So L.K. Advani is jumping the gun!
He’s not only jumping the gun, I think he shows a sense of short-sightedness for a leader who is ascribed maturity.
L.K. Advani has gone farther: on the day the judgment was announced he said this had cleared the way for a grand temple to be built in Ayodhya. Do you share that sentiment?
Again, as I said, when you talk about ‘grand temple’ and you talk about ‘clearing the way’ it’s premature. And L.K. Advani knows it. And perhaps they’re probably doing it because they believe in the oncoming elections they might find some advantage in saying it.
So you’re saying that in a sense he’s trying to exploit a sentiment and a mood?
I think so. I think so. That’s the most, what should I say. If I’ve to attribute a statement which has emerged from wisdom, I’d have said that Advani would never have made this statement. So I assume Advani is wise, so he has made this statement for a political motive.
Or he’s being very unwise and inflammatory...
No, I think there’s a political motivation behind it and he’s trying to justify to himself that what he did in the Rath Yatra was right.
Could this also turn out to be an inflammatory sort of thing to say?
I don’t know. I cannot comment on that.
Now, the judgment itself has been widely discussed and widely written about. As you see it, what are the important issues that are thrown up that will go to the Supreme Court?
Quite frankly, I don’t want at this point to comment on the correctness of the judgment. I don’t think it is appropriate for us, in a matter as sensitive as this, to really say “the judgment is right” or “the judgment is wrong.”
The judgment does throw up enormous issues of...
Let me clarify. Without commenting on the veracity of those issues and the manner in which the High Court has handled them, talk to me about the issues the judgment throws up.
There is, for example, the fundamental issue that will arise in the Supreme Court, that “can faith be the basis of a fact?”
You’re talking about the Ramjanmabhoomi janmasthan issue?
Right. And the majority in the judgment has held that there is a general perception amongst the Hindus that this is the janmasthan of Ram, and therefore the Ramjanmabhoomi... and the conclusion of the judgment is that a Ram temple should be built there. That issue will certainly arise in the Supreme Court.
This was something that you’d have seen in the papers has most worried the Muslims who have spoken out — that they believe that faith has been converted into a fact, and in doing so, the judgment has gone beyond the bounds of jurisprudence.
As I said, I don’t want to comment on the quality of the judgment. I don’t want to comment on the correctness of the judgment. I want to comment on the issue that will arise in the...
How easy would it be for the Supreme Court to handle this issue?
I don’t know how the Supreme Court will handle it. I am sure the Supreme Court will handle it according to the law.
But I take it this is a tricky and awkward issue to handle? It’s not a straightforward one.
Every issue that arises from this case is a complex issue, right? So because it is a complex issue, leaders of political parties should not be making simplistic statements.
A second issue that arises is that all three judges have accepted that under the mosque is a Hindu temple. Two of the judges have in fact accepted that that temple was specifically demolished. That seems to be based on a disputed and controversial Archaeological Survey of India report. How easy would it be for the Supreme Court to...?
First of all, many of us have not read the judgment, not analysed the evidence. For us therefore to say that the ASI report is right or wrong would not be appropriate. Historians can make that comment...
... and they are doing so...
Historians have made those statements, but in the ultimate analysis, the Supreme Court will definitely look... remember, this is the first appeal. In normal circumstances, these matters are not decided by the High Court. But there was a special dispensation. The High Court was charged with the responsibility of doing so. So when it comes up in appeal, the Supreme Court is going to look at each issue of fact and law meticulously — especially of fact. Because if the facts like whether there was a temple underneath — one judge has said there was a non-Islamic structure, that is, a Hindu temple — what does that mean? Is every non-Islamic structure a Hindu temple or is it a Hindu temple? Whether it is a non-Islamic structure or not? But these are factual issues again on which I have no expertise at this point in time. But this is a fundamental issue that arise on facts.
You see, the question about this sort of fact is that it is subject initially to interpretation. Because it is based upon a report which as you know is disputed by different historians. How do the judges of the Supreme Court decide which interpretation of the ASI to go with? There are those who believe that the ASI proves it is a temple, and others who say it doesn’t.
Judges are charged with that responsibility, rightly or wrongly.
But they aren’t experts themselves!
Doesn’t matter. Judges decide upon copyright law, they decide upon trademark law, they decide upon scientific issues, they decide upon very complex technical issues on a daily basis. So you must have confidence in the Supreme Court, that they will apply their mind and they will come out with a decision consistent with the Constitution.
Although I should point out that when they apply their mind they will be relying on the advice of some experts and those experts may be committed to a view and so the Supreme Court will end up taking that view.
That’s exactly what the judicial mind is actually meant to sift. Sift the bias from reality, and absorb the reality, and integrate in the judgment.
But given how controversial this point has already become in just the last four days, are you a bit concerned that it might be very difficult for the Supreme Court to handle?
(Chuckles) The Supreme Court will have to do it whether it likes it or not.
No option. Because they are charged with that responsibility.
Is there a possibility that when both these issues — the Ramjanmabhoomi janmasthan issue of faith, and this issue of whether there is a temple underneath based upon a disputed ASI report — that in both these instances the Supreme Court may say “these are not issues the court will go into” and actually say “we refuse to adjudicate on them”?
No, again, why should I speculate on...
It’s a possibility, I’m saying...
Anything is a possibility. The Supreme Court may affirm the judgment, the Supreme Court may completely set aside the judgment, the Supreme Court may do something else. I don’t know.
One other thing: I noticed that at least two of the judges in the judgment have actually accepted the Ramjanmabhoomi itself as a deity. How do you respond to that? To a simple mind like mine, it seems like an illogical thing to do, or at least linguistically flawed.
Again, that’s a very, very complex legal issue. Because remember, the Ram lalla was placed in 1949 in the sanctum sanctorum. Whether that act by itself translates this into a deity or not I don’t know. So there again the Supreme Court will apply its mind and decide. But quite frankly, all these issues, as I said, are highly complex, highly charged, and therefore the Supreme Court will be very, very careful and meticulous in analysing the judgment and coming to a conclusion consistent with the Constitution and the laws.
How long do you think appeals, when they get to the Supreme Court, will take? Soli Sorabjee… as the Ayodhya judgment was announced by the Allahabad High Court, went on to say that it could all be over possibly in 16 months.
It could be all over in 16 months, it may not be over in 16 months.
It could drag on for years...
Remember, the roster position and the significance of the matter and its complexity may require the Supreme Court to take time... but that’s not something that I can comment upon.
The Supreme Court will be under no pressure to rush the issue?
The Supreme Court decides on its own calendar, so the Supreme Court is not pressurised by any entity in the government or otherwise. And the Supreme Court should not be... I so believe that when the appeals are filed, there will be a status quo order and the Supreme Court will think carefully as to when it should take up the matter and how it should decide.
Let’s come to the solution proposed by the Allahabad High Court: a three-way split. Many believe that this reveals a strong strain of reconciliation and compromise inherent in the judgment.
Karan, in the ultimate analysis, reconciliation and compromise is the way forward. But that reconciliation and compromise should be left to the parties concerned.
But is it right for the court to actually show a way towards reconciliation?
Again, whether it is right or wrong is something for the Supreme Court to comment on. It’s not really for me to say. But the fact of the matter is that reconciliation and compromise is the way forward — the parties should get together — and that’s the best way forward. In the absence of a compromise and reconciliation there is no choice left but to have the matter looked into by the court. And the court may take any decision. I don’t know what the court will say.
Now in fact the High Court itself has said that the status quo will continue for the next three months, giving time for the three parties to find a method amongst themselves amicably to divide the land. Many people feel that at this point the government should step in and help them.
No, no, no, no... the government has no role to play in this. The government can only state publicly that the government would like the matter to be resolved by the parties concerned. But I don’t think it should involve the government in forcing a decision of this very complex issue.
Explain to me why that would be an improper or a wrong thing for the government to do?
Because what will the government do? The government will be asked by the parties concerned “what do you think should be the decision?”
And so the government will have to give its own opinion.
Then the government would become a party to this. And then it’s a no-win situation for the government. And why should the government get involved in a private dispute?
But is there no way that the government can say “the High Court has suggested that an amicable three-way division between the three of you, let me bring you together and...”
Again you are assuming that the High Court decision is the final decision.
This is very interesting. The problem with the solution proposed by the High Court is because the High Court decision is not the final decision, none of the parties will want to accept the High Court advice at this stage. They will all want to go to the Supreme Court in the hope they could do better?
I don’t know. That’s again prognosticating as to what the parties will do. But I would imagine that the parties aggrieved will go to the Supreme Court, the matters re-agitated in the Supreme Court and a decision taken. And remember, this particular judgment involves complex issues far beyond our conversation.
What are those? Give me a hint.
For instance, the issue of possession. Who has possession of the site? And what date of possession are you talking about? What is the concept of possession in 17th century India or 16th century India when it all happened?
Compared to today?
Compared to today. What are the prescriptive rights under the law of ownership in the 21st century? Do those prescriptive rights apply to 16th century India? What is the concept of ownership in the context of a place of worship?
These are fundamental issues...
These are fundamental issues.
That the Supreme Court will have to go into?
I hope so. I hope these are issues the Supreme Court will look at.
It’s very interesting you should raise this whole issue of ‘what is possession?’ because one of the grounds, if not the primary ground, which the High Court has come up with for this three-way split is the argument that at different points in time these three parties had possession. Now the question I want to ask you is this: as a lawyer, does someone get possession just because you worship at a site?
Well, this is the issue. Supposing — and I know of many instances where people worship... go to a peepal tree and worship underneath. Right? And some sadhu sits there under the peepal tree and thousands of people come and walk around it and worship. So who is in possession?
OK, so that sadhu cannot say “I possess the peepal tree because I worship under it.”
Oh yeah, who is in possession at that point? And what does possession mean? The essential element of possession is a right to egress and ingress — a right to enter, and not let someone to enter.
Is that not inherent when you worship at a particular site?
No, under the Indian Constitution you cannot prevent... I can go to a gurdwara and pray in front of the Guru Granth Sahib. No one can prevent me.
So even though you have the right to enter and leave, you do not have possession there just because you worship there.
I don’t have possession. The gurdwara may actually own the land, in which case they possess it and they have ownership over it. But when you talk about the Babri Masjid or you talk about a temple or prayers in the 19th century, or the 15th-16th-17th century, what is the concept?
You said something fundamental, and forgive me, just for the sake of the audience I want to make clear what is inherent in your argument... what you’re saying is that just because Party A or Party B happens to worship — perhaps for decades — at a particular site does not give that party possession of that site.
Right. Because these are two suits for title. Remember, title is based on two things: one, ownership which is a prescriptive right established under the law, and two, possession. Now you can say long-term possession entitles me and my community to pray here.
But you can’t say the opposite — that the fact that I have prayed here gives me possession?
Right. That’s another issue. That’ll be decided by the court. That applies to both communities. If there is a mosque there or there was a mosque there for a long period of time, somebody can say that till 1949 or till 1992 there was a mosque. Right? So I’ve prayed there for a period of time, why should I not be entitled to pray there? Right? That’s another issue that the Supreme Court will have to decide. And the Hindu community will say “No, but way back in the 19th century we were also praying here. So there is an established practice of our prayers.” So therefore, these are issues that the Supreme Court will have to decide on.
Absolutely. And the fundamental, key thing that you have just made clear for us is that the fact that you prayed somewhere for a long period of time does not give you possession.
It may give you the right to continue to pray there, but not possession. Maybe, maybe not. That’s what the Supreme Court...
That’s what the Supreme Court will go into, and in going into that, the Supreme Court may either validate the three-way split or negate the three-way split because it is critical — that three-way split depends upon belief in possession.
No, no, the court may say a number of things. The court may say “none of you have established your title”; the court may say “one of you has established your title”, as the court has said now. The court may say “two of you have established title.” I don’t know what the court will say, but remember, these are title suits, which means you are claiming ownership. Ownership is a very complex judicial concept. And what principles will be applied of ownership in the context of the fact that the mosque was built way back in the 16th century?
That’s what makes it so fiendishly complicated and fiendishly difficult.
For political parties to say that “my march has been vindicated, my Rath Yatra has been vindicated, and therefore a grand temple will be built” is, I think, jumping the gun. It shows an element of a lack of -- I would not say wisdom — but perspicacity of the legal...
The two are virtually the same.
Yeah, and therefore I do not expect mature leaders to make some statements, especially when they know that the issues are exceptionally complex, and the Supreme Court will deal with them.