There is a clamour by the Rashtriya Swayamsevak Sangh (RSS) and Sangh Parivar for an ordinance and later a statute (i.e. Act) for building a Ram temple over the ruins of the Babri Masjid in Ayodhya immediately. No more waiting, they say. The supposedly neutral Justice J. Chelameswar, who retired as a Supreme Court judge earlier this year, joined the fray, saying it was possible. The ex-justice is learned and bold, but needed to show the downside.
The Centre’s remit
Any ordinance would have to be passed by the Central government if the President (as advised by Prime Minister Narendra Modi’s cabinet) “is satisfied that circumstances exist which render it necessary for him to take immediate action” to promulgate an such an ordinance, which will cease if it is negated or lapses. If it lapses, re-promulgation can take place. Repeated re-publication was frowned upon in the D.C. Wadhwa case (1986).
Again, by brute strength an Act may be passed amidst upheavals and rancour throughout India. But can the Central government as statutory receiver pass such an ordinance or even table a Bill in Parliament? There is an immediate conflict of interest. The alternative is a Private Member’s Bill. Given the conflict of interest, the Central government is obliged to oppose it, albeit with a three-line whip. The State of Uttar Pradesh is bound by its stance in the Allahabad High Court that it is not interested in the site.
Even if passed, any such statute would have to cross many hurdles. First, there is the Places of Worship (Special Provisions) Act of 1991. In this Act, the cut-off date for freezing the religious character of a place of worship is August 15, 1947 and all suits regarding their status would abate. Section 6 prescribes punishment of up to three years or fine or both if this is violated. But Section 5 of the Act said: “Nothing contained in this Act shall apply to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating to the said place or place of worship.” This, however, does not pave the way for simply repealing the section, for that would give further protection to the Muslim case.
Second, we have to turn to the Acquisition of Certain Area at Ayodhya Act, 1993, which acquired the site to put an end to the litigation, and vested the property in Central government.
Third, the Act of 1993 was interpreted in Ismail Faruqui v. Union of India (1994) so that the property would remain with the Central government as a “statutory receiver”, a concept invented by the court. The cessation or abatement of the pending Ayodhya case between the Muslims and Hindus (Section 4(3)) was set aside by the Supreme Court while unfairly allowing Hindu worship. The court declared: “The best solution in the circumstances, on revival of suits is, therefore, to maintain status quo as on 7th January, 1993 when the law came into force.” Any action taken now (i.e. 2018 onwards) would violate this status quo. As the “statutory receiver”, the Central government has the responsibility to wait for the result of the suit. No ordinance or statute can sit in appeal on the Ismail Faruqui judgment of 1994.
Separation of powers
There is a well-known principle, emanating from the doctrine of separation of powers in the Constitution, that the legislative power of Parliament cannot usurp the judicial power to sit in appeal over the judicial decision-making – still less where the case is pending as a suit or in appeal. This decision, which was considered earlier, was firmed up on a tax case — Shri Prithvi Cotton Mills (1969) — after which there have been dozens of cases going one way or the other. But the legislature can change the basis of the law. It’s more complicated than you think. What will a proposed Act or ordinance say? Can it say that this first appeal to the Supreme Court under the Code of Civil Procedure will be taken away? The right to adjudicate cannot be taken away as it would be discriminatory if applied to a particular case to take away a valuable right. The new basis for the law would have to invalidate the Allahabad High Court judgment of 2010, Ismail Faruqui (1994) and the orders subsequent to it and then injunct the pending proceedings in the Supreme Court. The justification for this can only be that strident members of the Hindu majority are impatient to reverse the Allahabad decision which gives one-third of the land to the Muslims. There is also a resistance by the Nirmohi Akhara, which claims the entire site and does not want to give the Deity its one-third.
As soon as the ordinance or Act is passed, it will be challenged in the Supreme Court because it is of national importance and affects the jurisdiction of the Supreme Court. True, there is a presumption of the constitutional validity of a statute. Even if no stay is granted, the urgency of the matter may mean an assurance sought by the court that no precipitous steps would be taken during these new proceedings. There will be counter-clamour, protests, news that India favours Hindus over Muslims. Throughout the world the destruction of the Babri Masjid has provoked doubts on the capacity of India to be neutral. India has one of the largest Muslim populations in the world — short of 200 million. The case against the constitutionality of the new ordinance or Act will take some time to decide. The decision in the Ayodhya case will be delayed further.
There is only one part of Justice J.S. Verma’s majority in Ismail Faruqui (1994) that I like. He begins by quoting Jonathan Swift: “We have enough religion to make us hate, but not enough to make us love one another.”
A secular state?
With the rise of an uncompromising fundamentalism, India is faced with extreme populist demands against minorities and the rule of law. The Constitution is secular, but parts of civil society are rabidly communal. The demand for the state to intervene to allow the Ram temple is part of an aggressive Hindu fundamentalism which seeks to suborn the state to its wishes. The state has to remain neutral. To yield to a demand of one faith against another not only condones the destruction of the Masjid, but abandons the very basis of India’s multi-religious and cultural ethos which it is bound to protect. It is the Constitution that has pledged our diverse people together. It is not a plaything – still less in the hands of a motivated majoritarianism that puts ‘India’ to ransom. Muslim fundamentalism is allegedly terrorists, its violent elements banned. Hindu fundamentalism reigns free with its Hindutva, “ ghar wapsi ”, cow protection, violence, murders of activists and the Ram temple movement seeking immediate solution.
Rajeev Dhavan is a senior advocate of the Supreme Court