The Ayodhya judgment has raised several questions for jurists to answer. Prominent among these is whether the Supreme Court’s direction to the Central government to formulate a scheme and set up a trust to facilitate the construction of a temple on the disputed land would amount to a breach of the secular character of the State.
Can a secular State be ordered to facilitate the construction of a temple, which is an essential part of the Hindu belief? Does this not amount to a secular State fostering a particular religion?
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Justice K. Chandru, former Madras High Court judge, referred to the nine-judge Bench judgment in the S.R. Bommai case of 1994 in this regard. “The Bommai decision clearly said the State should be divorced from religion,” he said.
The Bommai judgment said the concept of secular State was essential in a democracy. “State is neither pro-particular religion nor anti-particular religion. It stands aloof, in other words maintains neutrality in matters of religion and provides equal protection to all religions,” it observed.
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Eminent jurist, Upendra Baxi, however, said there was no breach of constitutional secularism involved in the Centre being given the responsibility.
Former National Law School India University (NLSIU) Bengaluru Vice-Chancellor and eminent constitutional expert R. Venkata Rao, agreed. “The inscription of the Supreme Court is ‘yato dharma tato jaya’ [where there is dharma there is victory]. It is taken from the Bhagavad Gita. Now, it defies logic to say the Supreme Court is a religious institution,” he said.
Mr. Baxi said the Centre was already empowered under Section 6 of the Acquisition of Certain Area at Ayodhya Act,1993 to vest the disputed land in a trust or authority. He pointed out that Section 7(1) of the 1993 Act allowed the disputed property to be “maintained by the government or by any person or trustees of any trust, authorities”. The validity of the 1993 Act was also upheld by the Supreme Court.
But Justice Chandru argued that the Ayodhya Act was upheld only as an “interim measure so that land was not tampered with or frittered away when the case of its title and possession was still under litigation”.
He questioned why the apex court directed the Centre – which was not a party to the Ayodhya title suits or appeals - to formulate a scheme for the land. The court could have very well asked the local civil court under Section 92 (g) of the Code of Civil Procedure to settle a scheme for the land.